Today, Judge Kavanaugh and his accuser, Dr. Christine Blasey Ford, are having their day in “court.” At the writing of this article, Dr. Ford is testifying before the Senate Judiciary Committee, and Brett Kavanaugh is scheduled to testify soon concerning Dr. Ford’s allegations that Judge Kavanaugh sexually assaulted her 36 years ago.
Dr. Ford is now joined by two other women, Deborah Ramirez and Julie Swetnick, in accusing Judge Kavanaugh of sexual assault. This issue is, at first glance, a very sensitive political one concerning the appointment of a U.S. Supreme Court Justice. And, it certainly is that.
But, it is also much more than that. For, it is a deeply moral issue, and that is why I am commenting on it today.
I do my best to equip church leaders and committed Christians to think through and engage issues at the intersection of faith and public life (broader than just politics, but it certainly includes that arena). And, one of the roles of the “Big C” Church outside its walls is to be the conscience of the nation (Matt. 5:13-16; 1 Tim 3:15-16). Martin Luther King, Jr. said it best: ““The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state. If the church does not recapture its prophetic zeal, it will become an irrelevant social club without moral or spiritual authority.”
So, I am not willing to just flag this issue as exclusively “political” and to sit back while other voices render a verdict on what is moral in this situation. My point here is not to state what all Christians should believe about the issue. Rather, it is to set out the analysis of this Christian on this thorny question. So, here are some thoughts on making moral sense of the Kavanaugh controversy:
Asking the right question in such controversies is often key. Here’s the question (I have attempted to state this as objectively as possible): Should a well-respected judge be denied a position on the U.S. Supreme Court based on allegations of sexual assault in high school and college?
Three major allegations have surfaced. Dr. Ford has accused Judge Kavanaugh of sexually assaulting her at a party in high school. Julie Swetnick has accused Judge Kavanaugh of participating in a gang rape “ring,” of sexually assaulting other girls during drunken or drug-infused parties and being present at a party when she was sexually assaulted. And, Deborah Ramirez has accused Judge Kavanaugh of sexually assaulting her during a drunken party at Yale.
Some readers might find it odd that I am citing Scripture about a Supreme Court nomination. But, as Christians, we should apply Scripture to all of life. Here are some relevant Scriptural principles:
- Sexual activity between two people who are unmarried is clearly prohibited by Scripture (Col. 3:5); and, sexual assault is strongly condemned (Gen. 34; Jgs. 19-21; 2 Sam. 13).
- Bearing false witness or lying is prohibited and sinful (Ex. 23:1-3).
- In Matthew 18, Christ sets out a process of inquiry/conflict resolution for Christians, which includes an initial person-to-person meeting and then a follow-up meeting with one or two other witnesses if the first meeting is unsuccessful. Why? So that “…in the mouth of two or three witnesses every word may be established” (Matt. 18:16). This is consistent with Deuteronomy 19:15, which states: “One witness shall not rise up against a man for any iniquity, or for any sin…: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.”
- When Jethro visited Moses, he recommended that Moses appoint judges over the people to assist him. Here are the qualifications that Jethro mentioned: “Moreover…provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens: And let them judge the people at all seasons…” (Exodus 18:21-22a).
Constitutional Principles or Principles Affecting the Common Good
- Allegations of sexual assault should be taken at face value and with all seriousness. Sexual assault is a grave offense and, in most cases, a crime.
- The Constitution does not set out specific qualifications for U.S. Supreme Court Justices, and they may hold their office as long as they maintain “good behavior.” According to Article 3, Section 1 of the Constitution: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
- Lying under oath should disqualify a person from sitting on the highest court in the land and holding a position of, essentially, philosopher-king.
- Due process is the foundation of American jurisprudence. Because we are not omniscient, courts rely upon time-tested processes and rules to attempt to decipher the truth about events that occurred elsewhere. Further, as individuals, we gauge credibility every day through the appearance and manner of someone speaking and through the circumstances surrounding their statements.
- Testimony is evidence. But, the facts and circumstances surrounding that testimony is highly relevant as to the veracity of that testimony. Our system, like most judicial systems throughout history, relies upon corroboration to prove allegations.
- The fact that these allegations were withheld until the “11th hour” of the nomination process right before a mid-term election is relevant to the analysis and the question of credibility.
- That said, the reticence of many sexual assault victims to report such acts is also relevant to the question of credibility.
- The Supreme Court has taken on a much more pronounced role than was envisioned by the framers of the Constitution, and this controversy highlights the increasingly “political” or “super-legislative” role of the high court.
When analyzing such controversial issues, I find it helpful to reverse the political roles. Since I admittedly lean in a more conservative direction, I try to think of a nominee selected by, say, a more liberal president right before a critical mid-term election to replace a more conservative Justice of the Supreme Court. If the women making these allegations were conservative Christians concerning a more liberal nominee, would I think differently about it? That’s my litmus test to ensure that I am thinking morally and not just politically.
I do not know with certainty if Judge Kavanaugh is telling the truth or not, and I do not know if the allegations made by these women are true or false. Only Deborah Ramirez, Julie Swetnick, Dr. Ford and Judge Kavanaugh can speak to that. We don’t have video footage, and the parties have sworn to contradictory accounts. So, we should be comfortable with the fact that we may never know with a great deal of certainty what happened at these parties. This issue may come down to the simple question of who the American public and especially the Senators find more credible. Given that predicament, here are some important principles that need to be preserved through this process:
- Equality. We should preserve true equality, which I source from the fact that we are all created in God’s image. I try to think of Deborah Ramirez, Julie Swetnick and Dr. Ford as my wife or daughter. If they (my wife or daughter) said that such an assault occurred, I would believe them unless there was strong evidence to the contrary. But, I also try to think of Judge Kavanaugh as my son. If he (my son) unequivocally denied such an allegation, I would believe him unless there was strong evidence to the contrary. Judge Kavanaugh, Deborah Ramirez, Julie Swetnick and Dr. Ford are all human beings made in the image of God and citizens that should be afforded dignity and respect. Some people will naturally believe Judge Kavanaugh because of his position as a sitting judge. Others will naturally believe Deborah Ramirez, Julie Swetnick and Dr. Ford because of historic inequality towards women and a culture that quietly ignored or affirmed sexual harassment. This is shortsighted. We should not automatically assume that Judge Kavanaugh is telling the truth because of his position, and we should not automatically disbelieve him because of historic wrongs perpetrated by other people. Stated differently, we should not punish Kavanaugh as a proxy for the Weinsteins of the world. We should maintain the dignity of every person involved.
- Due Process. I have helped people in my law practice that I know (because of a later recantation) were falsely accused. All of us should fear a society in which a simple allegation can destroy our careers and lives. The standard concerning such things must be higher than mere allegations. There must be credible proof, which can include just testimony. That said, the issue in this case is that no witnesses have come forward to corroborate the allegations. This may change in short order; but, currently, no witnesses have corroborated the sexual assault allegations. In fact, in the case of Dr. Ford, witnesses have denied the allegations. This, taken together with the “11th hour” timing of the allegations and the length of time since their alleged occurrence, raise questions as to their credibility. I would say this about these allegations no matter the political leanings of the nominee. Due process must be preserved.
- Integrity. If these allegations of sexual assault are in any way true, Judge Kavanaugh should withdraw his nomination. Why? Because he has unequivocally denied the allegations. If they are proven to be true, then he lied under oath and should be removed from consideration.
So, in conclusion, should a well-respected judge be denied a position on the U.S. Supreme Court based on allegations of sexual assault in high school and college? If Judge Kavanaugh’s accusers can provide credible evidence, yes, because proof will expose him as a liar. This includes the testimony today. If not, in my opinion, Kavanaugh’s judicial record indicates that he is a qualified candidate for the bench. If additional, credible proof is brought forward at a later time, he could always be impeached.
What are your thoughts on this issue? Let me know by leaving a comment.