The FBI investigation — satisfactory or not — into sexual assault allegations against Brett Kavanaugh is now complete and the Senate will soon start voting on the nomination.
A senator who wants to do the right thing may experience this upcoming confirmation vote as a tragic choice in either direction. Setting aside issues of temperament or possible lies to the Judiciary Committee, the conflict at its core is between two impulses. A vote to confirm Kavanaugh seems equivalent to disbelieving Christine Blasey Ford — or, perhaps worse, believing her but deciding a distant sexual assault doesn’t matter. At the same time, a vote against Kavanaugh seems to amount to destroying a person’s reputation and career by dredging up allegations of teenage misconduct.
The choice is not so stark, however. There is a third way.
In order to see this, we need to remind ourselves of how jurors in criminal cases consider their choices. Kavanaugh supporters have been quick to analogize the current proceedings to a criminal trial, and those who oppose his nomination have been as quick to respond that it is not a trial, but a job interview. But there is an important analogy to draw to criminal trials, just not the one we’ve been hearing about.
One can vote against Kavanaugh even if one believes that the crime never occurred.
Everyone familiar with our legal system knows that an acquittal is not the same as proof of innocence. An acquittal merely indicates that the government has not proved its case.
The requirement of proof beyond a reasonable doubt is a demanding standard. By design, it contemplates the possibility of wrong answers and shows a willingness to tolerate false acquittals in order to avoid false convictions. The famous Blackstone Formulation — a principle articulated by 18th century English legal scholar William Blackstone — suggests that false convictions are far worse than mistaken aquittals. He expressed the sentiment in terms of a ratio: “It is better that 10 guilty persons escape, than that one innocent suffer.”
For a Supreme Court confirmation vote, perhaps the Senate should apply a Reverse Blackstone Ratio test: It is better to pass over 10 innocent nominees than to place one person guilty of committing the crime of sexual assault on the court.
Viewed through this formula, the Senate’s vote is not about whether a nominee is guilty, but whether the likelihood that he or she is guilty is sufficiently high to risk gravely damaging the Supreme Court as a bedrock institution in our legal system.
Under this formula, there should still be thorough investigations and senators’ decisions should be based on evidence, not mere allegations.
The Reverse Blackstone Ratio also suggests that one can vote against Kavanaugh even if one believes that the crime never occurred. How can this be the case? In the same way that a juror in a criminal trial can vote to acquit while believing that the defendant committed the crime — just not beyond a reasonable doubt. With this test, a senator can vote “no” because she believes the accuser. But she can also vote “no” because she thinks that there is enough credible evidence of wrongdoing to raise the specter of grave damage to the Supreme Court. And, as mentioned, she may even vote not to confirm while believing Kavanaugh’s protestations of innocence.
Moreover, if the Reverse Blackstone Ratio is in play and Kavanaugh is not confirmed, the rest of society should not draw the conclusion that Kavanaugh is guilty of sexual assault from his failure to clear the Senate.
To be sure, he would likely face a suspicious public and possibly other losses. Should he be impeached as a federal judge? Should he be invited to teach at law schools? Should he be allowed to coach girls’ basketball?
The answer to each question is: “It depends.” Each context comes with its own features, stakes and calculations. The point is that the Senate confirmation vote is about one question, and one question only; its outcome need not dictate answers to what should happen to Kavanaugh in other contexts.
A senator may believe in Kavanaugh’s innocence and still vote against him because of the circumstances of this particular vote, namely the likely impact of his confirmation on the Supreme Court and the special role it plays in our legal system. Ultimately, this vote should not be about Kavanaugh and the question of his innocence, but about the Supreme Court and its health in the future.
Youngjae Lee is a professor at Fordham University School of Law. His scholarship focuses on criminal juries and reasonable doubt.