The Editors: It is time for the Kavanaugh nomination to be withdrawn

 (CNS photo/Jim Bourg, pool via Reuters)

Editors' note (Oct. 2, 6:00 pm): Our editor in chief, Father Matt Malone, S.J., has responded, in his regular column, to many of our readers’ reactions to and questions about this editorial.

Dr. Christine Blasey Ford’s testimony before the Senate Judiciary Committee today clearly demonstrated both the seriousness of her allegation of assault by Judge Brett M. Kavanaugh and the stakes of this question for the whole country. Judge Kavanaugh denied the accusation and emphasized in his testimony that the opposition of Democratic senators to his nomination and their consequent willingness to attack him was established long before Dr. Blasey’s allegation was known.

Advertisement

Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey’s allegation is true, the assault and Judge Kavanaugh’s denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

The nomination of Judge Kavanaugh has become a referendum on how to address allegations of sexual assault.

If this were a question of establishing Judge Kavanaugh’s legal or moral responsibility for the assault described by Dr. Blasey, then far more stringent standards of proof would apply. His presumption of innocence might settle the matter in his favor, absent further investigation and new evidence. But the question is not solely about Judge Kavanaugh’s responsibility, nor is it any longer primarily about his qualifications. Rather it is about the prudence of his nomination and potential confirmation. In addition to being a fight over policy issues, which it already was, his nomination has also become a referendum on how to address allegations of sexual assault.

Somewhere in the distant past, at least before the word “Borked” was coined to describe a Supreme Court nomination defeated by ideological opposition, Senate confirmation hearings might have focused on evaluating a nominee’s judicial character or qualifications as a legal thinker. But that time is long past. Many cases decided by the Supreme Court itself and thus also presidential nominations to that body (and the Senate hearings that follow) are now thoroughly engaged in deciding “policy by other means.” Neither the country nor the court is well served by this arrangement, but refusing to recognize it does nothing to help reverse it.

When Republican leaders in the Senate refused even to hold hearings on the nomination of Judge Merrick Garland, they were not objecting to his qualifications or character but to the likely outcome of his vote on the court were he to be confirmed. When Senate Democrats were mostly united in opposition to Judge Kavanaugh well in advance of any hearings (and before any rumor of Dr. Blasey’s accusation was known), they were using the same calculus. While regrettable in both cases, such results are, as we have said before, the predictable outcome of the fact that “fundamental questions of social policy are increasingly referred to the court for adjudication as constitutional issues.”

What is different this time is that this nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court. It now involves the symbolic meaning of his nomination and confirmation in the #MeToo era. The hearings and the committee’s deliberations are now also a bellwether of the way the country treats women when their reports of harassment, assault and abuse threaten to derail the careers of powerful men.

This nomination battle is no longer purely about predicting the likely outcome of Judge Kavanaugh’s vote on the court.

While nomination hearings are far from the best venue to deal with such issues, the question is sufficiently important that it is prudent to recognize it as determinative at this point. Dr. Blasey's accusations have neither been fully investigated nor been proven to a legal standard, but neither have they been conclusively disproved or shown to be less than credible. Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability. The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

If Senate Republicans proceed with his nomination, they will be prioritizing policy aims over a woman’s report of an assault. Were he to be confirmed without this allegation being firmly disproved, it would hang over his future decisions on the Supreme Court for decades and further divide the country. Even if one thinks that Dr. Blasey's allegations are not credible, demonstrating them not to be would require further investigations and testimony. This would include calling additional witnesses and assessing further allegations against Judge Kavanaugh from other women, to which Republicans on the committee have been unwilling to commit and which would be divisive in any case.

The best of the bad resolutions available in this dilemma is for Judge Kavanaugh’s nomination to be withdrawn.

There are many good reasons to support the nomination of a qualified judge who is committed to a textualist interpretation of the Constitution to the Supreme Court. Over time, such an approach may return the question of abortion to the states, where it belongs given the Constitution’s silence on the matter, and where a more just and moral outcome than is currently possible under Roe v. Wade may be achieved. Restoring such a morally complex question to the deliberation of legislators rather than judges may also bring the country closer to a time when confirmation hearings can truly focus on the character and qualifications of the nominee rather than serving as proxy battles over every contentious issue in U.S. politics.

We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Neal Mcelroy
2 months 3 weeks ago

Yes, Kavanaugh is showing emotion. Democrats Couldn’t Stop Kavanaugh, So They’ll Destroy Him Instead. They could not stop him at the Senate Judiciary Committee. They could not stop him with witnesses. So now they're out to destroy him, and destroy his family and destroy his life, and destroy his career, and destroy his future.
By definition, decent people are not prepared for this kind of thing. Not that they’re ignorant to it. It’s just they don’t go through each and every day studying and prepping on how to get ready for the next smear job from the Democrat Party.”

The left wing, the Democrat Party is the biggest hate group in this country right now. Not to mention the biggest bunch of hypocrites you’ll find, although hypocrisy never sticks to them. They get away with their hypocrisy left and right.
*There will be backlash - November is looking better and better.
Liberals must be defeated not convinced

Paul Perez
2 months 3 weeks ago

The timing of the allegations coming to light demonstrates that, irrespective of Dr. Ford's allegations, the attack on Judge Kavanaugh is entirely political. The problem with America's editorial seemingly wise prescription is that, if followed, equally unsubstantiated accusations as unsubstantiated can and will as a matter of course be made by the out-of-power party -- and our democracy will be even further eroded.

Dionys Murphy
2 months 3 weeks ago

Yes. That's what Fox News and the Repugnant Cons want you to believe. The "timing," however is dependent upon the media discovering the information and forcing Ford's hand. Ironically, the same people talking about the "timing" were perfectly okay with the Repugnant Cons dumping 100,000+ documents on the committee the night before his confirmation hearings despite them having been in possession for months on end. Hypocrites of the worst kind.

thstonebooks@gmail.com
2 months 3 weeks ago

Duh. Everything is political. Why they want to rush kavanaugh through now. Why they don’t want an fbi investigation (would take up too much time and they might lose senate to dems). If so just do the right thing and do an fbi investigation to clear his name. Do a polygraph like ford did. Make the American people feel confident he is not a sexual predator and regardless of his political leanings that he is a fair judge and we can put faith in the judicial arm of the government. That’s what he also ought to do if politics wasn’t involved. But unfortunately it is

Henry George
2 months 3 weeks ago

I don't know who, if anyone, is telling the truth.

36 years is too long a time to expect the truth to finally emerge.

Dr. Ford's selective memory is unsettling as she evidently cannot recall
how she got home after she fled the gathering.

Yet, she recalls accidentally running into Mr. Judge at a Safeway some
five weeks later and how Judge's face turned white, but she did not describe herself as being emotionally overwhelmed...

The other allegations against Judge Kavanaugh are very week, the third and fourth ones are bordering on bizzare.

An innocent person, America, has a right not to be used by the Senate
for its own purposes. Neither Ford or Kavanaugh have deserved the base
treatment they have received.

However, unless you can show that Kavanaugh is indeed guilty then your request that he step aside is regrettable as the founder of your
order, Saint Ignatius led a wild youth, and was accused unjustly, after
he came to Jesus, and yet he did not give up.

One might wonder if Georgetown Prep and other Jesuit schools
need to do some deep soul searching.

J. Criquette
2 months 3 weeks ago

Is that really all you got? That she doesn't remember how she got home after a traumatic event, but remembers an encounter with one of the perpetrators 6 to 8 weeks later?
Considering the trauma she had just endured, I'm willing to give her a pass on not remember how she got home.

Jose A
2 months 3 weeks ago

This country is divided already. Why let a person with "no credible" evidence destroy a person for the sake of "cause." Shame on you American Media not having courage to stand up "innocent until prove guilty." Jesus our savior would have never stood a chance with editorial such as yours. Shame on you.

Dionys Murphy
2 months 3 weeks ago

Shame on you for supporting rape culture.

Jose A
2 months 3 weeks ago

PROVE to me it was rape..Here is another one that needs a lesson in "Innocent until proven guilty" That is how it works in America. Really. Before you finger point and accuse anyone of supporting anything.

Ellen B
2 months 3 weeks ago

Prof Ford never said she was raped. She said she was assaulted so .....yea??

It wasn't a trial. Even though the Republicans brought in a prosecutor to question Prof Ford. It was a job interview. A guy that you can't afford to risk an FBI investigation on? That you can't release all of his documents? That lies about stolen documents? He even lied about something as ridiculous as his drinking 30 some years ago. That disqualifies you from jobs. Mr Kavanaugh is not OWED a seat on the Supreme Court & his lies? Say that he should not be voted in.

thstonebooks@gmail.com
2 months 3 weeks ago

Innocent until proven guilty applies to criminal investigations. This is not that. If he is found guilty by the judiciary committee he is not going to jail he is not getting the job. Maybe next time I go for a job interview I should presume that I will get it and make them prove to me I’m unsuitable!! That’s just about the dumbest thing I’ve ever heard

Jose A
2 months 3 weeks ago

If you do not think this is not a criminal investigation and just "job interview" your mistaken and mis-lead. They are out to destroy a person character. When was the last interview you were on that they tried to destroy your character?

finalynsh@gmail.com
2 months 3 weeks ago

Everyday crimes happen that can't be proven. May times they even have the correct suspect but they have to charge with a lesser crime or even let them walk away, as they cannot prove their guilt. This doesn't make them innocent. One of my friends was sexually assaulted when in college by a man she thought was a friend. She never went to the police because she knew it would not be able to be proven. it would be word against word. Doesn't mean he didn't do it.

bill carson
2 months 3 weeks ago

Funny, if it suited the political interest of the Jesuit editors, you'd hear them screaming about how you can't presume a person is guilty of horrible crimes without ANY proof, just an assertion that the accuser is credible. If I'm not mistaken, were not the Pharisees very credible accusers? Jesus was judged guilty because he didn't prove his innocence.

Jose A
2 months 3 weeks ago

Thank you Bill

Ingrid Borghoff
2 months 3 weeks ago

Exactly.

thstonebooks@gmail.com
2 months 3 weeks ago

Again this is not a criminal investigation he’s not going to jail if he seems guilty at least not by this committee. He’s not getting a job. Most jobs they presume u r unsuited until you prove to them that you are the right candidate. He has proved he is not the right candidate

Jose A
2 months 3 weeks ago

If you do not think this is not a criminal investigation and just "job interview" your mistaken and mis-lead. They are out to destroy a person character. When was the last interview you were on that they tried to destroy your character?

Lucie Johnson
2 months 3 weeks ago

I disagree with the reasoning of this article. I think if Kavanaugh loses the nomination because of this, even though he is innocent, it will become impossible to get good people to serve. And the Supreme Court will lose credibility as well.

Ellen B
2 months 3 weeks ago

Merrick Garland.

Nathan Davis
2 months 3 weeks ago

Exactly. Mitch McConnell's decision to prevent any consideration of a Democratic president's nominees, and the numerous Republicans who claimed they would continue to do so if Hillary won, destroyed the court's credibility completely. Everything about this stinks. They are breaking norms and precedent left and right to push the courts to the right while they still can. The only way we to restore the court's credibility is to appoint Merrick Garland to the court.

Citizen Charles
2 months 3 weeks ago

Yes, and the refusal of lame duck appointments happened first when Democrats lead by Senator Joe Biden refused Bush. Indeed the majority vs supermajority confirmation which has resulted in this circus was because of Democrat Harry Reed's discarding of the usual order of business for the nuclear option. "Borking" and unsupported sexual allegations (Anita Hill) were the weapons of Democrats. Kavanaugh is correct in saying "what goes around comes around." This entire process was first subverted by Democrats. Period.

KATHERIN MARSH
2 months 3 weeks ago

When I read this editorial, I feel sad because it does not support a fundamental principle of law in our country: A person is innocent until proven guilty.
I believe Ford was sexually assaulted. In her lie detector test, which she passed, she was never asked the name of her assailant. Interesting omission.
We do not empower women by taking Ford's allegations and giving them the same weight as the women who went into a court of law against Bill Cosby. And to say that appointing Kavanaugh will derail the Metoo Movement is not far sighted or wise. Kavanaugh said it best: "All allegations should be taken seriously." That is why we have courts of law. That is why this would not make it to a court of law--because Ford accuses and it is very dramatic but in the end the allegations are not substantiated. No evidence, not even her lie detector, puts him at the scene.
It will be good to have him as Supreme Court Justice, as a reminder, that all allegations should be taken seriously.

MJ Painter
2 months 3 weeks ago

Innocent until proven guilty as a legal concept is the standard for criminal proceedings. This wasn't criminal, not even judicial. It was a legislative confirmation hearing. It''s basically a job interview.

Crystal Watson
2 months 3 weeks ago

I agree completely. If he is confirmed, I predict the Democrats will flip congress and mandate a real investigation of Kavanaugh and that he will be impeached.

James Schwarzwalder
2 months 3 weeks ago

Geez, I barely turned the TV off and here is a full blown editorial in America. You guys must have skipped dinner to get this one done. No I don't think abortion should be turned back to the individual states to decide. That did not work so well regarding slavery. Children are not property but a responsibility. There were more gaps in Dr. Ford's story than in Justice Kavanaugh's story. Bork, Thomas, Kavanaugh, a trifecta or hat trick. Seems to be a pattern here.

Will Niermeyer
2 months 3 weeks ago

Please, Please American Magazine you know not what you say. Judge Kavanaugh spoke well as he clearly stated he was not there. Furthermore the Democrats knew 20 days before this hearing about Ford's happening. I believe the Judge he is not the one to point fingers at but it is the little poor pawn of the Democrats that they chose to bring him down. He will be appointed and rightly so. In the meantime the sickness within the Democratic party is slowly festering. The root of that sickness is that they still cannot get over they lost that last election. I rejoiced to hear Lindsey Graham rightfully, emphatically, and justly, describe the hearings and behavior of the democratic senators during this hearing as disgusting and indecent attack on the integrity of Judge Kavanaugh and a destructive campaign to destroy his career as well as his family.

Nathan Davis
2 months 3 weeks ago

I didn't hear any inappropriate or rude questioning, regardless of how many times the GOP senators claimed it. Kavanaugh himself was incessantly rude, constantly interrupting questions and becoming belligerent when the Democratic senators tried to finish asking the questions. Even if the Democrats were sitting on it, that doesn't change the allegation, nor the fact that it's deserving of further investigation by a non-partisan body. The Republicans KNOW they are going to lose control of one, if not both bodies of Congress this year. They are doing everything in their power to rush this nomination through. If this allegation had never occurred, this still would have been a farce. The GOP has refused to release thousands of documents, excluded their Democratic colleagues from the process. And may I remind you that the Republicans refused to even CONSIDER Merrick Garland, and many senators expressed their intent to continue to deny Hillary Clinton the ability to appoint to a Justice to the court. The "behavior" that you are referring to, i.e., investigating claims of sexual assault during the vetting process, pails in comparison to the behavior of the GOP under Obama.

Mike Macrie
2 months 3 weeks ago

My judgement is Kanvanaugh and his buddies were at the party. I don’t believe he ever intended to rape her but was showing off in front of his despicable friend Mark Judge. What’s unsettling is Kanvanaugh remaining close friends with him and calling him a Great Writer to boot. Wouldn’t you want to distance yourself from an Alcoholic and Drug Addict after that chapter in your life ? But you can’t prove it and be real do you think those guys are ever going to admit to it unless later they are down on their luck and decide to write a book and dime Kavanaugh out.

Steve Quehl
2 months 3 weeks ago

Your assertion that the nomination of Judge Kavanaugh, "is no longer in the best interests of the country" indicates that you have succumbed to the insidious temptation posed by evil political operatives hard at work to undermine the values of our country. In other words, you would vote with the relativitists who insist that their "truth" should be cause to disrupt the nomination of perhaps the last best option to select a "qualified judge who is committed to a textualist interpretation of the Constitution to the Supreme Court." Jesus had the better response: "Get behind me Satan."

Catherine Goldschlager
2 months 3 weeks ago

On the contrary, Steve Quehl, the editors are suggesting that deciding social policy such as women's rights belong in the state legislative arena and not the courts for the simple reason that it is a question of individual values not Constitutional. Your values may not be mine.

J Brookbank
2 months 3 weeks ago

The nomination should be withdrawn because the nominee demonstrated that, under (admittedly great) pressure in a job interview for one of the most important roles in in US democracy, he is belligerent, juvenile and attempted to obstruct other professionals from doing their jobs.

When he turned the questions about his drinking back on the persons employed to ask those questions, he displayed a juvenile and belligerent arrogance that would be considered insubordination or a comparable descriptor in almost any adult context I can imagine.

That was a nasty little temperament he revealed. It should be a disqualifying temperament for SCOTUS.

Vincent Couling
2 months 3 weeks ago

Very well said!

bill carson
2 months 3 weeks ago

I have a question for any Jesuit reading these comments: Can you name ANY politician who opposes abortions that you think you and most other Jesuits would vote for? I'm guessing no Jesuit can name one because it would mean naming Republicans. I've never heard of any Jesuit supporting any Republican. Let's see if some Jesuits respond to this. You know many will read these comments.

bill carson
2 months 3 weeks ago

Now, 2.75 hours later, NOT one Jesuit has responded to say that they'd support any Republican who opposes abortions. We all know this huge fight is about the fear of the left about losing their right to kill kids, yet the Jesuits always seem to have a reason to choose death and then LIE about what they're really up to.

I had Jesuit teaching for 8 years, at Creighton Prep and Creighton University in Omaha. It is pieces like this that make me ashamed of the men who taught me. In spite of them, not because of them, I have kept my Catholic faith and try to live it.

Norman Langenbrunner
2 months 3 weeks ago

Seems America, as well as NCR, has become a voice for the Democrat party. Only the Democrats win of Kavanugh is not seated on the Supreme Court, and accusation becomes the deciding factor for all future nominations. Sorry, America (magazine as well as nation).

A Fielder
2 months 3 weeks ago

The editors are consistently pro-life, they are certainly not the voice of the Democratic Party.

david cortes
2 months 2 weeks ago

Consistently pro-life? Not today. Today their pro-life support is overthrown by their need to establish something they consider more important: That when a woman accuses a male judicial nominee of a sexual offense, he cannot be confirmed "without this allegation being firmly disproved." Adios, America.

John Walton
2 months 3 weeks ago

Stop the presses: "Augustine withdraws bid for sainthood". Anyone else read the Confessions in non-sanitized latin?

John Sharpe
2 months 3 weeks ago

It’s becoming increasingly difficult to remain Catholic. The gates of hell
Shall not prevail... I’m not sure I believe It anymore

Andrew Strada
2 months 3 weeks ago

I was in the habit of reading your editorials and articles online because they were free. Sadly, I have come to realize that even at that rate they were overpriced. Goodbye!

John Borgia
2 months 3 weeks ago

Thank you for the chuckle on a truly sad day.

Carl Nelson
2 months 3 weeks ago

He can do more to return the court to a role that forces Congress to start playing their proper constitutional role. We need him on the court, and the evidence supports his innocence so he should not be disqualified.

Andrew Wolfe
2 months 3 weeks ago

It’s disgraceful that the editors should advocate withdrawing Kavanaugh. Ford’s claims are not credible and their craven handling by Senators Feinstein et al is an outrage. The Editors should be ashamed to capitulate to this parliamentary rioting if it values the Republic named on the masthead.

Thomas Friedman
2 months 3 weeks ago

I am ashamed of the bias shown by the America editors, and ashamed of the Jesuits for supporting this attitude of guilt by accusation. For all of the weasel words used in the editorial, it simply comes down to "he's guilty because he can't prove he's innocent"... which the Jesuits taught me long ago was a logical fallacy. Simply shameful, and totally divergent from the Jesuit education I received. And this, sadly, reflects the same sexist liberal bias shown by the "Questions That Should Be Asked" editorial from the day before.

Kerry Guiney Feeney
2 months 3 weeks ago

I agree with you. I am so upset, this goes against everything that the Jesuits teach. I can’t believe they are abandoning Judge Kavanaugh. Such a disgrace.

John Wren
2 months 3 weeks ago

Did you watch the hearing? Very unfair. Clear Ford suffering from a false memory, supercharged as she and her political operative husband discussed the possiblities. Study Finds Memories Can Change with Each Recall; Researcher Sees Criminal Justice Implications http://www.abajournal.com/news/article/study_finds_memories_can_change_… via @ABAJournal #Kav

Jeffrey More
2 months 3 weeks ago

"Were he to be confirmed without this allegation being firmly disproved, it would hang over his future decisions on the Supreme Court for decades and further divide the country. Even if one thinks that Dr. Blasey's allegations are not credible, demonstrating them not to be would require further investigations and testimony."
Here is the crux of America Magazine's shameful argument: Kavanaugh should withdraw because, as the accused subject of unsubstantiated (and disproved or contradictory) allegations, he has not/cannot "firmly disprove" those allegations. This, of course, is not Kavanaugh's burden. This is not how we operate our justice system in this country, and by advocating otherwise, the editors of this rag are paving the way for a descent down a very slippery slope. Indeed, why not apply their skewed view of assigning the burden of proving, or disproving, allegations of misconduct to a wider range of subjects? For example, it has been more than a month since Archbishop Vigano leveled serious charges of misconduct against our beloved Pontifex Maximus, yet he refuses to address the charges. Why, given his failure to "firmly disprove" Vigano's allegations, should Bergoglio not resign, for the good of the Church and the future credibility of the Papacy in a world that is finally learning to take reports of harassment, assault and abuse seriously?

Robert Lewis
2 months 3 weeks ago

He's not on trial; he's interviewing for a job--one which he has no built-in right to, just as neither you nor I have any "right" to any position we are applying for. His credibility has been called into question, not his culpability. However, discredited integrity is a perfectly valid reason for passing over an applicant.

Advertisement

The latest from america

In his World Day of Peace message, Pope Francis warned against the vices that are too often linked to politics today and do not build peace in society.
Gerard O’ConnellDecember 18, 2018
The request is a clear indication that children, not the reputation of the church, will be the paramount concern at this meeting.
Gerard O’ConnellDecember 18, 2018
As today’s Gospel suggests, righteousness is no guarantee of a smooth life.
Elizabeth Kirkland CahillDecember 18, 2018
The very best television is like an Ignatian contemplation: It tells stories that offer us some kind of gift—an insight or encouragement for our lives.
Jim McDermottDecember 18, 2018