Let me start by stating that I am concerned about having Brett Kavanaugh as the ninth member of the Supreme Court, despite his exemplary list of qualifications.  However, let me hasten to add it is not because of his sexual misconduct accusations.  I have reasons that are best left to another essay to explain my reticence of having him on the Supreme Court, except to say that Roe v. Wade is very important to me, even though, as he has stated during his prior confirmation hearings, that it is settled law.

I am, however, deeply disturbed and disappointed that hearsay, uncorroborated accusations, rumors, and innuendo now have replaced justice and proven truth, as we have come to expect it to be executed ever since 1776.   If you look it up, the Constitution gives us guarantees that we will be judged by a jury of peers, that the rules of evidence must be followed.   These rules are complex and numerous, but basically common sense.  If you look it up, there are 63 rules in total, set forth in the federal rules of evidence, each of which has subdivisions within the individual 63 sections.  Although I am far from being a Constitutional lawyer, I have some understanding what constitutes legitimate evidence.  Evidence must be pertinent and must be something that you personally witnessed, rather than, “I heard that so and so said or did such and such.”

The witness must be a competent individual, and not under any mental or physical coercion to give such evidence.  Also, the witness must not be under influence of chemicals such as alcohol or other drugs, the amount of which is immaterial, whether it is one beer or mainlined Heroin, because we cannot possibly know or guess how much or how little this or any drug affects that individual’s memory, inhibitions, morals, or actions.  There must be consistency to the story, and changing the details makes the testimony shakey, and places it under the shadow of doubt. Any details will help in the corroboration of the truth: where, when, who, and how are facts that will verify the facts.  Where did this happen? Was it four or was it two people in the room would be important to know? How did you get home? If those things are unknown it adds to the mystery, and the truth is out of focus, to at least some degree.  Corroboration of the facts is necessary.  He said she said is not acceptable evidence, unless someone comes forward, who was also present, and was not under undue influence of chemical or other pressures, or financial incentives, to support the statement of reputed fact.  I believe her because she is a woman and has a credible job, a credible social position, a credible story that was delivered in a credible and empathetic fashion, or conversely I don’t believe him because he is a man, has reportedly shown disrespect to women when he was a teenager, and has had times when he supposedly misused alcohol in the distant past, and showed loss of emotional control over his temper during his response.

Prejudicial pressures can also nullify the testimony.  Prejudice is, by definition, a condition when you have already decided what you believe to be the truth before you hear the evidence.  A tendency to support Feminism, or conversely to practice Misogyny seriously damages your credibility and weakens you as a creditable witness.   The masses of screaming women outside the hearing rooms making the statement “I believe her!” does not lend support to the veracity of the testimony nor will it influence the gender-war one way or another.  Nor does a person’s character prove the crime.  An individual who spent time in prison for theft does not prove that he stole your purse yesterday. You need better evidence than that.

I also question the timing of this action.  One must give credence to the reluctance of women to come forward with these kinds of accusations because of fear of retaliation, shame, and perhaps some hesitancy of concern for sharing the responsibility to encourage this kind of misconduct.  And going to a frat party where alcohol is served, without parental supervision of a fifteen-year-old girl, certainly raises the specter of responsibility, not to mention judgement.  Why was the timing so pinpoint accurate to inflict maximum harm after 32 years of silence, and I repeat 32 years of silence, with much skepticism and some degree of disbelief?  This is highly suspicious for political maneuvering, and highlights the questionable tactics of disregarding the rules of evidence and the presumption of innocence.

Senator Chuck Schumer made the statement to the effect that, “Have there not been enough questions raised, that alone disqualify an individual for consideration of appointment, to such an important office as Supreme Court Justice?” Although I must admit that it is a good sound bite, is just the raising of the questions enough to disqualify a candidate?  This sets a new standard of whom to believe, or not to believe, and furthermore is a dangerous precedence.  This weapon can be used by all sides, and the next candidate from either camp can simply be eliminated by raising the question of whatever impropriety.  Besides the procedural aspect of determining truth and accountability, and the visible failure to follow the established methods that have served us well for several centuries was ignored.  I hope we do not abandon the presumption of innocence.  This would do irrecoverable harm to our jurist prudence system.

The vehement response of Brett Kavanaugh was also raised as a disqualifying trait by many of his peers. We could all learn that a measured response is much better than lashing out, but sometimes that is the only humanly possible response given the level of insult.  If that were a reason to eliminate a judge, a doctor, a professor, or any one,  I dare say that the ranks would be culled considerably, especially in my profession of surgery, where I have seen many vehement overreactions in almost all of my peers and even occasionally in myself, not the best way to react, but often, at least understandable, in high tension or high emotional situations.  I wonder how many Senators on that committee or for that matter any human being with passion and self-respect, would remain calm and unemotional when called a drunken rapist?   Furthermore, I don’t think any of us would want to be judged based on the behavior in our formative teen age years, regardless of the level of veracity, or what someone wrote in your yearbook. To allow the country to witness this, in my opinion is not a good spectacle nor does it set a good precedent for justice.  As Churchill reportedly once said, “There are two things that should not be seen by the public, as they are disgusting: the making of sausage, and politics in action!