No, One Accuser's Uncorroborated, Distant Memory is Not Sufficient to Derail a Supreme Court Nomination

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Posted: Sep 18, 2018 10:25 AM
No, One Accuser's Uncorroborated, Distant Memory is Not Sufficient to Derail a Supreme Court Nomination

Another day, another must-read essay from David French -- an attorney and commentator whose contributions to the debate over an allegation against Supreme Court nominee Brett Kavanaugh have been invaluable.  Yesterday, I laid out my thoughts on the overall controversy, then suggested a manner in which each side's assertions could be examined and prodded as respectfully and thoroughly as possible, without descending into a circus.  Some lefty critics of my approach to this whole issue have asked why I don't simply believe the accuser, and why her stated recollection isn't satisfactory unto itself as evidence against Judge Kavanaugh.  

In short, as I've explained, relying on a lone accuser's unverifiable claim about something that allegedly took place decades ago strikes me as a profoundly unjust basis on which to tarnish someone's reputation and derail his career.  If that's the standard that is applied to high-profile political nominees, the recriminations and replications will be endless, corrosive, and bipartisan.  Here's a left-leaning law professor illustrating the perils of this approach to her fellow ideologues:


Yes, what should or could a falsely-accused man say?  He could adamantly deny it.  Another alleged eyewitness could deny it.  Women who knew him well at the time could attest to his high character.  His allies could point to discrepancies (four vs. two men, as deserved in the 2012 therapy notes, which don't mention Kavanaugh's name) and missing pieces of the alleged victim's story (specifics of the where, when and how that she can't recall).  That's precisely what has happened with Kavanaugh thus far.  Then what?  If the only answer is to "believe women," that sets up an impossible -- and frankly sexist -- standard under which men literally cannot defend themselves against serious accusations, and under which false and defamatory allegations prevail, by default.  That is not justice.  Contemporaneous corroboration and patterns of conduct are therefore essential components of credible (which is not the same as proven) allegations, in the absence of strong physical or digital proof, as is clearly the case here.  As for the point about someone's publicly-relayed account, French reminds us of the notorious and documented fallibility of the human memory: 

One of the very first things that young litigators learn is that memory is a very, very fickle thing — even memories of traumatic events. In case after case, you’ll encounter two opposing litigants who speak with absolutely fierce conviction about key events in their lives, and those memories will often diverge almost completely. When I was young and naive, I often thought that meant one party was telling truth (my client!), and the other side was full of dirty, vicious liars. It didn’t take long for me to realize that more often than not both sides believed their own stories, and the longer the case dragged on, the more they hardened in their positions. That’s one reason why good lawyers, when interviewing clients, ask a few simple, key questions. “Did you take notes of these conversations?” “Did you tell anyone else this happened?” “Are there any emails or memos reflecting these agreements?” You’re constantly on a quest for the sword that slays the legal beast — corroborating evidence.

French also mentions a "number of studies detailing how easy it is to implant memories (in one study, subjects 'remembered' details of a surgery that never happened), how matters as simple as sleep deprivation can impact memory, and how even short passages of time can distort recollections."  He goes on to quote a Vox piece about how the unreliability of people's memories contributed to the terrible University of Virginia gang rape hoax:

This becomes an especially pressing question since it’s clear that the reporter relied on Jackie’s memory — and decades of research have demonstrated that memories are are malleable, fragile, flawed. Memories can be twisted by time. Misinformation can skew people’s memories of events, and completely fabricated memories can even be planted in people such that they weave them into the narrative of their lives. “Just because someone is telling you something in a lot of detail and with a great amount of confidence,” says Elizabeth Loftus, a cognitive psychologist and one of America’s preeminent researchers on memory, “doesn’t mean it happened.”  If you understand that memory is a foggy patchwork or synthesis of events and exposures in our lives — and some memories aren’t real — you would probably hesitate before relying solely on a person’s memory. “It’s very compelling to believe someone’s memory,” said Loftus, “especially when they cry. But I’ve seen people cry over false memories, as well as over real ones.”

This doesn't mean that all, or most, memories are false, of course. It doesn't mean that Ford's memory is wrong in this case. It doesn't mean that Kavanaugh and Judge are recalling things either perfectly or inaccurately.  It just means that if the core of an allegation is a distant memory, with little to no supporting corroboration from the time in question, major skepticism and caution is warranted (update: I should reiterate that this was reportedly Dianne Feinstein's stance on Ford's accusation, until it wasn't).  That's particularly true when the stakes are so high. Speaking of high stakes, Allahpundit raises an interesting question: 

I ask that question rhetorically, because I believe with 99 percent confidence that if Kavanaugh were to withdraw from SCOTUS contention you’d never hear a Democrat mention his name again. Their mission is to keep him off the Supreme Court and to keep that seat vacant until next year, when they might have a majority in the Senate. If Christine Blasey Ford’s accusation does that for them, mission accomplished. Time to forget Kavanaugh and move on to strategizing against the next nominee. Or at least, that’s what they’d do if they’re viewing Ford’s accusation as nothing more than a political cudgel, a means to an end rather than a grievous crime that really should be taken seriously. Because if you take it seriously, as every Democrat will soon profess to doing when they vote no, there’s no reason they should permit Kavanaugh to sit on the D.C. Circuit. It can’t be that attempted rape is disqualifying for a Supreme Court justice but merely a “demerit” or whatever for a judge who sits on the Court of Appeals.

But isn't there a difference between actively removing someone from office and denying him a promotion to a more powerful post?  AP's not buying that counterpoint: "To make the argument that Kavanaugh shouldn’t be removed from the D.C. Circuit under the circumstances would be tantamount to admitting that Ford’s accusation falls short (way, way short) of 'beyond a reasonable doubt.' And that will lead people to question whether the standards of proof should be different, or what standard of proof should be required generally in #MeToo cases where there’s a single accuser with no hard evidence to support her allegation."  Quite so.  What are the standards of proof and consequence here?  And how can they be applied evenly, as opposed to on an ad hoc basis, with naked politics factoring in heavily?  In case you missed it, I'll leave you with some interesting quotes from Prof. Ford's attorney about another famous accuser of a powerful man:


And also via McCormack, let's not be selective about claims of partisanship, moral standing and "complicity:"