Should Kavanaugh be confirmed if we don’t know who is telling the truth?

Should Kavanaugh be confirmed if we don’t know who is telling the truth?
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After Christine Blasey Ford’s testimony, there seemed to be a consensus — including even Republicans — that Ford was credible and that Brett Kavanaugh’s confirmation was in serious trouble.

She was respectful, soft-spoken, calm, and tried to be helpful. She did not interrupt anyone and did not argue with the Senators. Republicans were hoping that she would come off as unsure, politically driven, or even unstable. She came across just the opposite. She was “100 percent sure” it was Kavanaugh, she never mentioned politics, and she came across as likable. President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE was reportedly upset that Republicans were caught flat-footed by just how credible Ford was.

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Then came Kavanaugh. He strode in holding his wife’s hand. She and his mother sat behind him as he began his opening remarks. His demeanor was the opposite of Ford’s — angry, indignant, and emotional. He interrupted the Senators and argued with them. Although very different than Ford, his demeanor was also effective and seemed to reinvigorate his supporters, who during the lunch break had been feeling defeated. He forcefully said again and again that he was 100 percent innocent. Energized Republicans took over the questioning from the prosecutor they had planned to let run the proceeding. The nomination, on life support after Ford’s testimony, seemed to be very much alive.

But what now? It seems we are in no better spot than when we started Thursday morning in terms of figuring out what happened 36 years ago: Those who believed Ford still believed Ford, and those who believed Kavanaugh still believed him.

What about those of us who had an open mind? Did the day of must-watch TV help any independents? More importantly, what about the 3 or 4 Senators who went into the hearing unsure how they would vote? 

Some first principles are worth remembering. This is not a criminal trial, and Kavanaugh hasn't and won't be charged with any crime. That said, there are some basic rules to look at when judging the testimony of both Ford and Kavanaugh: did the witness impress you, did the witness have a motive to lie, did the witness' testimony differ from other evidence including previous accounts, did the witness have the ability to accurately observe what happened at the time, and so on. As you reflect on what was said and whether Kavanaugh should be confirmed, think about the testimony in light of these considerations.

In a criminal trial, of course, jurors would be told that if they could not decide who was telling the truth, they should not convict Kavanaugh. In a civil trial, on the other hand, a juror would be told that he or she need only be 51% sure of who was telling the truth, making it far easier to reach a decision. For a confirmation hearing, we have no articulated standard. 

It is likely that many politicians and pundits will come out with forceful statements very similar to the positions they held before the hearing.  Without a more thorough hearing, with additional witnesses and with real cross-examination not done in impossible 5-minute bites, we are left with a very difficult question: Should we accept or reject Kavanaugh as the next Supreme Court Justice when we don’t really know what happened. 

We are left to wonder how half of our representatives can walk away from the hearing saying that they are convinced that Ford told the truth while the other half is convinced that Kavanaugh told the truth.  

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C. and as an Assistant Federal Public Defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.