https://www.wsj.com/articles/this-is-no-mere-job-interview-1538313919
Until Judge Brett Kavanaugh was accused of horrible crimes—sexual assault, lewd conduct and even gang rape—his confirmation hearings could fairly, if not entirely accurately, be characterized as a “job interview.” The burden was on him to demonstrate his suitability to serve on the Supreme Court. He apparently met that burden in the eyes of a majority, a partisan one to be sure, and seemed on the way to getting the job.
But now everything has changed. So should the burden of persuasion. The behavior of which Judge Kavanaugh has been accused is so serious and devastating that it requires a high level of proof before forming the basis for his rejection. There is an enormous and dispositive difference between a candidate’s rejection on ideological grounds, as was the case with Robert Bork, and rejection on the ground that he has committed crimes warranting lifetime imprisonment rather than a lifetime appointment.
Being on the Supreme Court is a privilege, not a right. But being disqualified based on a false accusation of a crime would be a violation of the fundamental right to fairness. Some will argue that the issue of Judge Kavanaugh’s ideological and professional qualifications should be merged with the sexual allegations and that doubts should be resolved against a lifetime appointment.
In some cases that would be a plausible argument. But it is too late for that kind of nuanced approach now, because these accusations have received world-wide attention. Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy and a reputation earned over many decades as a lawyer and judge.
If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.