Certainty is a delusion in the debate swirling around Supreme Court nominee Brett Kavanaugh. But the options for truth are not unlimited.
We are deeply unlikely to be presented with irrefutable evidence of the capital-T Truth about whether Kavanaugh engaged in sexual assault or other misconduct in his youth. But that does not mean anything is possible. On the contrary, there are five basic options for the reality of this situation. It is worthwhile to think them through.
Scenario 1: Kavanaugh is innocent, and his reaction to these accusations is dramatic but arguably appropriate.
Here Kavanaugh's accusers — Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick — are engaged in deception and dirty politicking, and the nominee is falsely accused. If this is the reality, of course Kavanaugh should not on this count be excluded from the Supreme Court.
This scenario does, however, raise the question of "judicial temperament": Kavanaugh's Senate Judiciary Committee testimony was histrionic, even tearful. And as Kavanaugh himself said in a 2015 speech, a "good judge" must "have the proper demeanor," namely an ability to "keep our emotions in check, to be calm amidst the storm." Moreover, accounts from acquaintances, lawyers who have worked in his court, and an email from Kavanaugh himself ("apologies … [for] growing aggressive after blowing still another game of dice") suggest he may be unduly intemperate when angry. This consideration is not to be lightly dismissed.
So is Kavanaugh's manner enough to disqualify him, even if he's innocent of sexual assault? I lean toward no — Supreme Court service will not entail the unique and intensely personal threat Kavanaugh in this scenario faces — but I could be persuaded otherwise. The reports that he "was difficult and 'dissembled' in his representations in court" are especially troubling.
Scenario 2: Kavanaugh is guilty, and he confesses, apologizes, and repents.
Some Kavanaugh supporters have found in their hearts a charity for reformed juvenile offenders too often missing in our criminal justice system. If he is guilty of these allegations, they say, it's not disqualifying because the assault happened a long time ago, and he was only 17.
I agree — with one major addition. As I wrote last month, there must be repentance. That means an admission of guilt coupled with apology, repudiation of his sin, and sincere effort to make whatever sort of restitution is possible these 35 years later. If Kavanaugh is guilty and takes this sort of unflinching responsibility for what he has done, then again, he should not on this count be excluded from the Supreme Court.
Unfortunately, this option has been eliminated by Kavanaugh's weeks of categorical denials. A reversal now would only demonstrate that his failings of character did not end in high school.
Scenario 3: Kavanaugh is guilty and knows it; he is lying — willfully, brazenly, and repeatedly.
This is the assumption of many on the left, corresponding to the space of certainty some on the right have found in Scenario 1. If this is the truth, Kavanaugh is totally disqualified, not only because of what he did then but because of what he is doing now. He would be a dishonest, violent lecher utterly unsuited to preside on the nation's highest court.
Scenario 4: Kavanaugh is guilty but sincerely does not remember his behavior.
This scenario was more plausible when there was just one accuser, but it's not impossible now. If we consider only Ford's allegation — and consensus rightly holds her as the most credible of the lot — it is possible Kavanaugh legitimately does not remember a single assault attempt undertaken while extremely intoxicated decades ago.
The Ramirez story, in which Kavanaugh is alleged to have "exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent," could also be forgotten, though it is less likely he would forget both.
The Swetnick account, which almost but not quite claims Kavanaugh participated in organized gang rapes, is far more difficult to square with Scenario 4. She describes a pattern of behavior at multiple parties. Could anyone sincerely fail to remember such a scheme of habitual assault?
If this is the reality — well, I'm not sure. No course of action is likely to be widely satisfying. Kavanaugh, like any of us, is unlikely to accept unremembered and unproven guilt, and his accusers would have no cause to back down.
Scenario 5: Kavanaugh is innocent, but his accusers are sincere in their misrecollections.
The likelihood of Scenario 5 could be either helped or hurt by multiple allegations. It may strike us as implausible that three women could all be sincerely wrong about this: If Kavanaugh is innocent, they must be lying, putting us in Scenario 1.
However, we might also conclude that the cascade of allegations is evidence of damaging but sincere error, for memory works in often unreliable ways. The accusers' minds could subconsciously write Kavanaugh into real memories in which he was adjacent but not actually involved. Swetnick's admitted uncertainty may contribute to this possibility, as can Ramirez's six days of "assessing her memories."
As in Scenario 4, there is no clear remedy here. Kavanaugh would not have cause to cease his protests, nor would his accusers see a need to recant. In Scenarios 4 and 5 alike we are left with a perhaps vain hope that the erring party will flinch.
Scenario 2 is eliminated by Kavanaugh's lack of repentance, and realistically, the FBI probe launched Friday will not provide conclusive proof of the remaining scenarios. What it can do, however, is investigate the smaller details and little lies.
Determining whether Kavanaugh lied about content in his yearbook, his drinking habits, and lesser claims by his accusers and other classmates is a doable investigatory goal. It should be possible to ascertain what "boofing," "Renate alumnus," and "devil's triangle" really meant to the young men of Georgetown Prep.
If, as The American Conservative's Daniel Larison says, "the evidence that [Kavanaugh] lied to the Judiciary Committee many times [is] overwhelming," we begin to gain clarity regardless of the size of the lies. "The fact that he knowingly gave false statements under oath should disqualify him," Larison argues, and "evasions and misrepresentations on these other points have only made his fervent denials of the very serious charge less believable."
If Kavanaugh has lied about "boofing," his drinking, and so on, Scenarios 1, 4, and 5 are increasingly implausible. A man of wisdom and good character who is or sincerely believes himself innocent of these charges would not lie about the finer points. He would take, on a smaller scale, the path of repentance in Scenario 2.
That is not what Brett Kavanaugh has done, suggesting Scenario 3 is true — or that he lacks wisdom and good character. In either case, he should not be seated on the Supreme Court.