Supreme Court nominee Brett Kavanaugh has lived a blatantly public life.
As a sitting U.S. Appeals Court judge on the D.C. Circuit for 12 years, he has heard 2,000 cases in open court and authored more than 300 opinions for the record. The FBI has conducted background checks on him six different times. He was vetted by the U.S. Senate in hearings before taking his place on the federal bench in 2006.
For more than a decade, he has taught at the law schools of both Yale and Harvard (Justice Elena Kagan hired him when she was dean at Harvard).
He has employed 48 law clerks, 52 percent of which were women and 27 percent people of color.
His writings include nine published articles in law journals and co-authorship of a book on legal precedent. He has also spoken extensively in public venues and forums. One unofficial estimate is that his collective career output could exceed 1 million pages of material.
The American Bar Association gave him, unanimously, its highest rating when he was nominated for the Supreme Court.
Since graduating Juris Doctor from Yale Law School in 1990, his career has been marked by illustrious service with nary a scandalous asterisk. He's routinely called a great college teacher, a great dad, a great youth team coach, a great church guy and a great judge by acquaintances in all those walks of life.
Now, contrast that--highly visible, meticulously detailed, scrupulously scrutinized personal information and conduct that defines Kavanaugh's reputation--with the alleged sexual assault accusation against him brought by college professor Christine Ford.
She doesn't know when the incident occurred, who was there, or how the gathering came together. She doesn't know at which house the party was held, or how she got there. The person she named as witnessing the assault says it never happened.
She never mentioned it, or reported it, to anyone for 30 years. When she discussed it for the first time during couples therapy in 2012, she did not name her molester, and she blames discrepancies with her memory now and her therapist's notes on the therapist. Amid all her uncertainty, she is positive about one thing: Kavanaugh's identity.
In other words, she offers no evidence whatsoever--physical, documentary, witnesses--to support her statement.
A false public statement that damages the reputation of another person is a slander. Putting a slanderous statement in writing makes it a libel. The law protects us from slander and libel because such defamation causes real and irreparable harm; it's a bell that cannot be unrung.
In 1964 the U.S. Supreme Court excluded public figures from successful slander and libel actions for damages, but constitutionalized a critical exception: when the person speaking or writing the defamatory language does so with actual malice. The 9-0 decision defined "actual malice" as "knowledge that it was false or with reckless disregard of whether it was false or not."
There is no doubt that Kavanaugh is a public figure, and thus confronts the higher standard for any defamation claim.
The lack of any corroborating evidence leaves nothing but doubt about the method, timing and motive of the accusation. By her own admission, Ford has had more than six years to contemplate "coming forward."
That's a long time during which to make sure things are very organized, to research and try to retrieve substantiating information, to anticipate the most predictable skeptical responses and pre-empt them with the most credible evidence.
If a person truly wanted a full investigation, the objective would be to make the investigating as effortless as possible--and the truth the easiest to discern.
Conversely, if a person only wanted to damage a reputation sufficiently to achieve a desired effect, such as disqualification from a Supreme Court seat, the objective would be to make the investigating exceedingly difficult--and the truth the hardest to uncover.
With such a long gestation period for her decision, and timing that reeks of political consideration, Ford would obviously have realized that her behavior would factor into her credibility.
Releasing only portions of her therapy notes to a newspaper is less than fully transparent. Scrubbing social media and online data is an attempt to conceal potentially relevant information.
In keeping with his open-book persona, Kavanaugh immediately agreed to under-oath testimony before the Senate confirmation committee ASAP.
Ford's hedging about testifying looks like a delay tactic when everyone understands time is of the essence.
One reason statutes of limitations exist is because it's inherently unfair to have to defend charges of wrongdoing decades after the fact, when exonerating evidence has deteriorated or disappeared.
An accusation timed for the most damaging character effect, resting solely on foggy, disputed and unprovable adolescent recollections from 36 summers ago, is hardly a formula for seeking or delivering justice.
Especially since there's a subsequent lifetime and known quantity of integrity, honor and upstanding example as proof in opposition.
The greatest catastrophe here would be the one our legal system precisely protects against by requiring factual evidence and prohibiting decades-old charges: the wrongful ruination of a good man's reputation.
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Dana D. Kelley is a freelance writer from Jonesboro.
Editorial on 09/21/2018