Brett Kavanaugh was confirmed to the U.S. Supreme Court over the weekend after a 50-48 vote, so his supporters should be glad that he got through the confirmation process despite facing various allegations of sexual misconduct. As it turns out, some of them aren’t satisfied with that. Instead of putting the controversy and accusations behind him, they want him to sue his accusers for defamation.
Former Federal Trade Commission chairman Daniel Oliver, now the head of the Education and Research Institute, suggested this in a piece for The Federalist. He said that Kavanaugh should go after Dr. Christine Blasey Ford and the Washington Post, which published her allegations, for $20 million each.
Even if you believe Kavanaugh is innocent, this is a terrible idea.
The gist of the argument, which I’ve heard from others in the pro-Kavanaugh camp, is that people who bring false allegations need to face consequences. Generally speaking, I agree with this completely. If Kavanaugh is innocent, and this whole thing was a fabricated plot by Democrats as a political ploy as he claimed during his hearing, that would indeed be disgusting and those behind it would deserve to be held accountable.
That being said, why on earth would Kavanaugh want to re-litigate this matter? The strongest argument in his favor during his confirmation process was that he was being accused despite a relative lack of evidence. His supporters argued that people should be deemed innocent until proven guilty, and you can’t just disqualify someone based solely on allegations.
“They are willing — no, eager — to discard the presumption of innocence, a hallmark of Anglo-American jurisprudence and of Western Civilization,” Oliver said of Democrats.
If Kavanaugh were to sue Ford, however, he would then be the one to have to prove his innocence. Oliver said that the burden of proving a statement’s truth falls on the defendant, but that hasn’t been the case since 1964’s Supreme Court decision in New York Times v. Sullivan.
In order to prove a defamation case, the plaintiff has to show that a statement made against them was false. That means the burden would fall on Kavanaugh to prove to a jury that he did not try to sexually assault Ford when they were teenagers, and the standard of proof is a preponderance of the evidence. That means that a jury would have to believe that it’s more likely than not that Kavanaugh is innocent. That’s not a very high standard, and it wouldn’t be worth sending such a case to a jury, where you never know how they’re going to decide.
Right now, Kavanaugh can walk away from all of this. If he’s innocent, he can put a horrible ordeal behind him. After all, he’s now on the U.S. Supreme Court. If he did do what Ford accused him of doing, well, he can count himself lucky that enough people didn’t believe it. Either way, I can’t imagine he would possibly want to drag this out any further.
Ronn Blitzer is the Senior Legal Editor of Law&Crime and a former New York City prosecutor. Follow him on Twitter @RonnBlitzer.
[Image via Win McNamee/Getty Images]