Originally a comment by Screechy Monkey on Prosecutors look for corroborating evidence.

I haven’t seen the apologists trot this one out yet, but based on discussions about Shermer, Krauss, et al, I’m sure it’s coming: “you can’t vote no on his nomination based on this unless there is evidence beyond a reasonable doubt of his guilt!”

Bullshit. “Guilt beyond a reasonable doubt” is the legal standard used in criminal trials. There’s no good reason to apply that standard here.

First, there’s no need to “borrow” any particular legal standard at all. A Senate confirmation isn’t a legal trial at all, let alone a criminal one. Kavanaugh doesn’t have any real legal rights here whatsoever. He’s not entitled to due process on his Supreme Court nomination. (And if you think he is, I have two words for you: Merrick. Garland. He wasn’t even given a hearing or a vote, let alone a yes vote, based on no wrongdoing other than having been nominated by a black Democratic president.)

Second, even if you want to look to legal standards, the law has plenty of standards, of which “beyond a reasonable doubt” is the strictest. There’s “clear and convincing evidence,” there’s “preponderance of evidence” (which is sufficient to award a judgment against you even if it bankrupts you), there’s “probable cause” (which is enough to allow the police to show up at your home or place of business and tear the place apart looking for evidence — and you don’t even get a chance to argue the matter) and “reasonable suspicion” (which allows a cop to stop and frisk you).

The law uses a standard that corresponds to the stakes. “Beyond a reasonable doubt” is reserved for those instances where someone is potentially being deprived of life or liberty. As the old saying goes, better to let ten guilty men go free than to imprison one innocent man. But why would that standard apply to an appointment to one of the highest jobs in the land? Is it really “better to allow ten attempted rapists on the Supreme Court than to deny one innocent man the honor?” (I suspect that for many people, the answer is yes: the prospect of a man being denied something on the word of a woman is so horrifying that it outweighs any other harms.)

To put it another way: what standard would you apply if you found out that a babysitter you were considering had been accused of child molestation? How many parents would say “well, he/she hasn’t been convicted….” or “well, it was just a he said/she said situation”? Would you really insist that the evidence be overwhelming before you moved on to one of the many other candidates?

Yale churns out ~200 graduates a year; Harvard another ~500+, and rumor has it there are actually other law schools in the country capable of producing Supreme Court justices. Even if you limit yourself to the subset that is Federalist Society-approved, that’s still a lot of options. Even conservatives weren’t claiming that Kavanaugh was clearly the “best” candidate on the shortlist, whatever “best” means in this context. It shouldn’t require overwhelming evidence of his unfitness (and I think we had plenty even pre-rape allegations) to say, “no thanks. Next!”