Senator Collins Expatiates on the Standard of Proof


Please do me a favor. If you have any Republican friends left, do not speak with them about standards of proof or job interviews. It is an inconclusive and unpersuasive discussion and leads down a rathole. Speak instead of how you would get to the point where you could apply whatever standard of proof suits your fancy.

Brett Kavanaugh was accused of doing a very bad—and, by the way, criminal—act at the age of 17. Should this disqualify him from service on the Supreme Court?

One possible coherent answer is, no, it should not disqualify him, whether he did it or not. Boys will be boys. She was asking for it. Yadda, yadda.

You will note that this answer admits of no discussion of standards of proof. Because if you don’t care whether or not he did it, then it follows as the night the day that the standard of proof is irrelevant. Eyewitness accounts from twenty bishops would matter not a fig.

This position evidences a depraved mind, but it is, nonetheless, coherent.

Another possible coherent answer is, well, it might matter, depending on what the facts show. (By “facts” I mean the facts about what all the witnesses say today, and the facts about what any relevant documents say.) Once the facts have been marshalled, you can THEN have a coherent argument about how to judge the facts, including an argument about what standard of proof is most appropriate.

What makes no sense whatsoever is the Susan Collins position: let’s have an incomplete sham investigation and then apply a standard of proof to the facts found in the incomplete investigation.

The main problem with her position is not that she adopted the wrong standard of proof, but that she applied a plausible standard of proof to a sham investigation.

In point of fact, there is no generally accepted standard of proof for job interviews, just as the Constitution does not impose a standard of proof when senators advise and consent. Our founders foolishly assumed that their successors would have good judgment, and would be able and willing to apply that good judgment.