As a law professor for half a century, I tested the consistency and strength of my student’s arguments by constructing thought experiments in the form of challenging hypothetical cases -- we called them hypos. So let’s construct one to test the arguments being offered in the Kavanaugh case.
A thought experiment: President Hillary Clinton nominates the first Muslim-American to the Supreme Court. Let’s call him Amir Hassan. He is highly qualified and his nomination is widely supported by most Democrats and some centrists.
Most Republicans oppose him and accuse him of being a judicial activist. Then several witnesses place him at a mosque at which terrorism was advocated. He claims he went there to hear all sides of the issue. One witness places him in a terrorism training camp but that account is not corroborated. One final witness identifies him as the man who planted the bomb that blew off his leg at a demonstration. He categorically denies any association with terrorism.
How would the Senate, the media, ACLU and the public deal with these accusations?
The answer seems clear: the sides and arguments would be largely reversed. The shoe would be on the other foot and the hypocrisy of double standards would be exposed for all to see.
Surely the ACLU would not be arguing, as they have in the Kavanaugh case, that doubts should be resolved in favor of guilt. Radicals would not be insisting that terrorism survivors must always be believed as to identification. My left-wing colleagues would not point to the anger displayed by the possibly falsely accused nominee as proof of his disqualifying injudicious temperament.
To the contrary, the ACLU would be demanding due process, a presumption of innocence and a high burden of proof before so serious a charge could destroy a life, family and career. My colleagues would be defending the righteous anger of a falsely accused victim of ethnic prejudice.
The identity politics accusations would not be directed against old white men, but rather against those who would stereotype Muslims as terrorists. The Jewish Forward would not be featuring an article entitled “Is Amir Hassan Every Muslim men?,” as it is now featuring an article entitled “Is Brett Kavanaugh Every American man?”
Many right-wing Republicans would now be making arguments similar to those being made by their left-wing Democratic colleagues in the Kavanaugh case. This is just a job interview not a trial. Believe terrorism survivors. There is no burden of proof; mere suspicion is enough to deny a possible terrorist a lifetime appointment to the Supreme Court. Look how angry he is, demonstrating a lack of judicial temperament.
Hypocrisy is the coin of partisanship. It affects both sides. It may be better than simply not even caring whether people think you’re being fair. As Francois de La Rochefoucauld once put it: “Hypocrisy is the homage vice pays to virtue.” It is precisely because of the pervasiveness and apparent acceptance of hypocrisy that I insist on applying “the shoe on the other foot test” to all aspects of politics, law, morality and lives. It drives my colleagues and friends crazy when I challenge them to pass the test. Few are willing to take it. Even fewer pass it.
Applying that test to the Kavanaugh case doesn’t provide a perfect resolution. But it does supply some guiding principles. Ask yourself what you would be thinking and saying about my Muslim-American hypothetical thought experiment.
One’s first instinct is to try to distinguish the cases: rape is not like terrorism; stereotyping a Muslim-American as a terrorist is different than stereotyping a privileged white man as a rapist; rape survivors are more reliable witnesses than terrorism survivors; the burden of proof should be higher for proving terrorism than rape.
None of these distinctions are compelling in the context of a Supreme Court confirmation process. They are makeweights designed to weaken the force of the shoe on the other foot test and to justify the hypocrisy of shifting arguments when it is your ox that is being gored.
So now back to Kavanaugh. The test for him should be the test that would have been demanded had the first Muslim American been nominated to the Supreme Court by a Democratic president and been accused of engaging in terrorism as a 17-year ol-. A full investigation, a fair process of judgment, no presumption of truth telling by alleged victims, no presumption of guilt against the nominee because he has so much to lose, a standard of guilt that varies with the seriousness of the accusations, and no identity political stereotypes as substitutes for hard evidence.
These and other neutral rules should be applied to this case and every case going forward. Only then could we be confident in the fairness of the outcome.
Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of The Case Against Impeaching Trump, Skyhorse Publishing, July 2018. Follow Alan Dershowitz on Twitter: @AlanDersh, and Facebook: @AlanMDershowitz
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