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Kavanaugh: A Legal Assessment — With Some Personal Reflections

Brett Kavanaugh
In this photo taken with a slow shutter speed and a zoom, President Donald Trump's Supreme Court nominee, Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Thursday, Sept. 6, 2018, for the third day of his confirmation hearing to replace retired Justice Anthony Kennedy.
Alex Brandon/AP

The case against Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is being tried in the media as if it’s a criminal case. It’s not. It is part of a political proceeding. But for the sake of argument, let’s assume we are in court.

The burden of convicting Kavanaugh – denying him a seat on the Supreme Court – would be proof beyond a reasonable doubt.

Recall the first Bill Cosby criminal trial. When only one victim, Andrea Constand, testified, the jury was deadlocked. When several women backed up Constand’s testimony by relating their own experiences of assault at Crosby’s hands, the jury convicted. And as I write this essay, Cosby was sentenced to from three to 10 years in prison.

With this in mind, the more alleged victims who come forward with Kavanaugh horror stories, the more credible those allegations become in the minds of most observers.

Of course, the Senate Judiciary Committee could say that it believes, or disbelieves, any one, two, or possibly three of Kavanaugh’s alleged victims. But when there are several victims, as now appears to be the case, it gets harder to disbelieve, or at least to claim to disbelieve.

There are, of course, dangers. With multiple victims, even if most are truthful, one or more could be mistaken, or at worst lying. The passage of time, after all, does plays tricks on memory.

Here is where the courtroom analogy gets shaky. How can one assemble proof, or disproof, of something that allegedly happened when a now-50-year-old man was in high school and then a freshman at Yale?

And there is another potential complication: The male accused, and the female accuser, might both believe that they are telling the truth. Memory is fallible – especially over time, and likely more so when alcohol is involved.

In the end, however, the Kavanaugh case is not about justice; it’s about power. And there is a certain irony at work. Many experts contend that intimate assault is not about sex, it’s about one person’s power over another.

The scenario playing out on Capitol Hill and in the press, the bottom line is simple: whoever has the most votes, whichever political party holds (for the time being) the most power, will determine what the “truth” is. There will be no civics book ending. No analogy to a real judicial proceeding will be possible.

If you find my professional legal assessment cold, or even cynical, then you may find my personal reflection on Kavanaugh naïve. My view is that a decent society does not hold something against an adult for something the adult did, or allegedly did, when an adolescent. We should all understand that adolescence is a time of life when kids do some very foolish things, some of which border on, or even pass firmly into, the category of illegality and, indeed, of criminality. The overwhelming majority of such actions are never reported, never prosecuted, never punished except, perhaps, by the fracturing of previously trustful relationships. Erring adolescents lose their relationships, but not their freedom, not their presumptively clean records as they forge ahead into adulthood. Indeed, there would be very few of us who reach adulthood without criminal records if adolescent hijinks (or even worse) were frequently prosecuted.

When does “adolescence” occur? I’ve represented a lot of kids in trouble. And I can tell you that in the modern era, adolescence begins around age 12 and lasts through college graduation (or, for kids who don’t attend college, the age at which kids would graduate).

This is not just my opinion: Society has juvenile courts for transgressions committed in adolescence; the legal system does not want to give mere kids a permanent criminal record. Even at a time when too many juveniles are treated as adults, it is more often than not a widely accepted guiding principle that kids are given a pass by being treated and taught more than punished.

Among many of my friends in Cambridge and Boston, my view of Kavanaugh is considered wrongheaded -- if not reckless, even dangerous. So, I’ll make matters worse by saying that so much of the case being made against Kavanaugh is cynical, if not outright dishonest. It has nothing to do with his qualifications to be a Supreme Court justice. Nor is it reflective of how Kavanaugh’s most ardent critics really feel about the extent to which adults should be punished later in life for their adolescent transgressions. They would not want their own children, nor themselves for that matter, treated in the way they are campaigning for Kavanaugh to be treated. This is a classic example of the hypocrisy of the current socio-political moment.

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