Brett Kavanaugh isn’t just any man. A Supreme Court Justice must be ethically unimpeachable

Brett Kavanaugh, swearing to uphold the law.
Brett Kavanaugh, swearing to uphold the law.
Image: Reuters/Larry Downing
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Donald Trump’s US Supreme Court nominee Brett Kavanaugh has been accused of sexually assaulting a 15-year-old girl when he was 17, more than three decades ago. The allegations, which he unequivocally denies, have now become a critical test of the US’s culture and the legal system: Can a judge be confirmed to the highest court in the land while in the shadow of a criminal accusation?

All lawyers are held to standards of moral character. Judges in particular are expected to meet those standards. If Kavanaugh’s confirmation proceeds before the accusation has been properly investigated, it will be a sign that the #MeToo movement hasn’t really prompted a national awakening, and that little has changed since Anita Hill accused Clarence Thomas of sexual harassment in 1991, and moreover that the legal profession’s ethical foundations take a back seat to politics.

Christine Blasey comes forward

Before Kavanaugh was named as Trump’s nominee, Christine Blasey contacted the Washington Post tip line in early July with information about a sexual assault, according to reporter Emma Brown. Blasey told the publication that Kavanaugh attempted to rape her when they were teenagers, at a party in the early 1980s.

She also contacted her congresswoman Anna Eshoo, sending her a confidential letter detailing the allegations, and, subsequently, senator Dianne Feinstein, ranking Democrat on the Senate Judiciary Committee, the governmental body responsible for the high court confirmation process. Feinstein did not act on the confidential letter or share it with her fellow committee members, explaining last week that she was respecting the accuser’s request for confidentiality.

But word of the letter got out last week and on Sept. 16, Blasey named herself as its writer in the Washington Post. She said if her story was going to be told, she would be the one to do it. According to her account, Kavanaugh and his friend Mark Judge corralled her into a bedroom when they were both “stumblingly drunk” and attacked her. She says that Kavanaugh covered her mouth as she tried to protest and that she thought he might inadvertently kill her as he climbed on her and groped her. She says she got away when Judge jumped on them both, breaking Kavanaugh’s hold.

Blasey never told the story to anyone—not friends, or her parents, whom she feared would be angry that she attended a party where teenagers were drinking. She says she was traumatized by the event and sought psychological treatment. Her therapist’s notes and her husband, Russel Ford, attest to this, revealing that in 2012 during couples therapy she spoke about an incident involving boys “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.”

Now, Blasey is 51 years old, and a research psychologist in California. Though she initially wanted to protect her privacy, she feels compelled to speak up, she says. “Now I feel like my civic responsibility is outweighing my anguish and terror about retaliation.”

Remembering Anita Hill

Blasey has reason to be wary. In 1991, attorney and professor Anita Hill accused Clarence Thomas of sexual harassment, discussing porn and other inappropriate topics when they worked together at the Equal Employment Opportunity Commission in the 1980s. She reluctantly spoke out during his Supreme Court nomination process with little result: Three women who could have corroborated her claims about Thomas were denied the opportunity to testify, and the judge was confirmed 58-42 despite allegations that he was morally unfit for the position.

Even back then, the result seemed regressive. Now, in light of the #MeToo movement, it would be a sign of utter disrespect to women to move forward with a vote on Kavanaugh’s confirmation—currently scheduled for this week—before examining Blasey’s accusations. If Kavanaugh is confirmed, two of the six men on the Supreme Court, will have been accused of sexual misconduct without clearing their names—hardly a heartening figure for women or the culture at large.

White House counselor Kellyanne Conway has said that Blasey’s claims shouldn’t be dismissed, telling Fox & Friends, “This woman should not be insulted, and she should not be ignored.”

Yet Conway’s view is not universally shared. One lawyer close to the White House told Politico that the accusation should motivate more men to stand by Kavanaugh for the sake of solidarity. “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. We can all be accused of something,” the source said. “It’s not even going to slow him down if that’s all she’s got.” Another unnamed Trump adviser insisted, “This is not Anita Hill.”

Some even claim taking the story seriously would present an impossibly high bar for public servants. “If this is the new standard, no one will ever want or be able to serve in government or on the judiciary,” Ed Rollins, current co-chairman of the pro-Trump Great America PAC, tells the Daily Beast.

Both Rollins and the lawyer ignore the fact that the question of sexual assault is not a new standard. There are minimal standards of character and fitness expected of every lawyer. If the accusations against Kavanaugh are true, and had been known in his youth, he wouldn’t be considered fit to practice law, much less serve as a high court judge.

Character and fitness for the bar

Every lawyer who is admitted to practice in the 50 states and Washington DC must pass a character and fitness examination. While each state defines good moral character differently, all require applicants to disclose and explain any events that might indicate they are not morally fit—an attempted rape while “stumblingly drunk” would certainly fall into that category.

Moral character applications typically require a thorough and detailed account of the applicant’s background, references,  and a “heightened inquiry into any problematic history involving extraordinary academic, administrative, civil, criminal, financial, or medical measures, with particular concern for any untoward chemical dependency,” according to a 2002 California Western Law Review article.

Professor Matthew Ritter at California Western School of Law in San Diego, California explains that the idea behind this examination is to protect the public and the integrity of the legal system. He writes:

The operative assumption is that subjecting bar applicants to moral scrutiny will help to exclude the unscrupulous from practicing law, thus protecting the public from bad lawyering as well as maintaining the good public image of lawyering. Generally, desirable character traits include: honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, fiscal responsibility, physical ability to practice law, knowledge of the law, mental and emotional stability, and a commitment to the judicial process.

The Model Rules of Professional Conduct for lawyers provide that a determination of unfitness for legal practice can be based on the commission of offenses involving “violence, dishonesty, breach of trust, or serious interference with administration of justice.”

If Kavanaugh is denying an incident that did actually happen, he would be more dangerous as a Supreme Court judge, and even less fit to practice law. Dishonesty is not a quality we want in judges, especially not those entrusted with the most important decisions in the land on the highest court of all.

Kavanaugh previously passed character examinations and FBI background checks. However, that doesn’t bar the possibility that he attacked Blasey, since she admits she never revealed the incident until 2012, and just came forward publicly yesterday. There would be no reason to doubt the previous reviews until now.

Some Republicans agree that the allegations against Kavanaugh should be properly heard before his confirmation is allowed to continue. Senators Jeff Flake and Bob Corker both say the Senate Judiciary Committee should not vote on Kavanaugh’s nomination until they talk to his accuser, and senator Lisa Murkowski said the committee might have to consider delaying the vote.

Meanwhile, even Kavanaugh seems willing to slow things down somewhat if it will clear his name or save his prestigious nomination. He today issued a statement explaining he was unable to defend against the allegations because his accuser only came forward yesterday. He writes, “I am willing to talk to the Senate Judiciary Committee in any way the Committee deems appropriate to refute this false allegation from 36 years ago, and to defend my integrity.”