Brett Kavanaugh, Character and Fitness

Judge Brett Kavanaugh is nearing confirmation to become the next Justice of the Supreme Court of the United States. As you likely know by now, he has also been accused of sexual assault when he was in high school. The story of his accuser, Christine Blasey Ford, can be read in The Washington Post

The short version: during a drunken high school party, Kavanaugh allegedly caught her in a room, held her down and attempted to take her clothes off in what was likely an effort to have sex with her. An effort which would’ve been rape, because Blasey Ford did not consent. Indeed, she claims that she tried to fight off Kavanaugh and tried to scream, but that he placed his hand over her mouth to prevent her from doing so. Thankfully, however, she managed to escape in part due to Kavanaugh’s drunken state and the drunken state of one of his friends who was also in the room. The incident has traumatized Blasey Ford for years, she says, and she suffered from post traumatic stress disorder. Kavanaugh and the other man who was allegedly in the room at the time deny the accusations completely. 

Now that Blasey Ford’s story is out, you will hear a few things, over and over again, from Republicans and those who want him to be confirmed: 

  • “He denies it”
  • “It was a long time ago”; and
  • “There were no criminal charges.”

Those things are all true. But they also don’t matter when a lawyer or a judge is involved. The bar is nowhere near that low.

All lawyers, before being admitted to the bar, are subject to a test of “character and fitness.” This involves background checks and interviews. If you do not pass your “character and fitness” test, you are not admitted to the practice of law.

The thing about the character and fitness test is that it specifically deals with stuff that happened a long time ago, before you were a lawyer. It often deals with stuff that never resulted in criminal charges. It does not matter if you denied, because the test is your candor. Indeed, someone who has been arrested and has gone to jail and has done their time, has atoned and is frank about it all has a BETTER chance of being admitted to the bar than someone who wasn’t charged with anything but offers sketchy denials when asked about a given incident that had otherwise gone un-investigated.

(It’s probably also worth noting that a history of financial irresponsibility is a relevant subject of inquiry and that getting into non-criminal financial trouble in such a way that raises questions about your judgment can also keep you from getting your law license. That could also be relevant for Kavanaugh too, but we’ll let that go for the time being)

The key to all of this is that the test — contrary to what Republicans will say for the next few days — is not “his word against hers” or how long ago it was or whether there was anything criminal that arose from it. It’s about his character. It’s about his candor. It’s about his integrity.

That’s a high bar, not a low one. And it’s that high a bar SIMPLY TO GET YOUR LAW LICENSE. Now think about how high that bar should be to get, literally, the highest possible legal job in existence: Justice of the Supreme Court of the United States of America.

Non-lawyers may think it’s silly or overstating things, but lawyers know: if bar examiner had been made aware of these allegations when Kavanaugh graduated law school, he would have, at the very least, been subject to greater investigation on the matter. Depending on how he answered those questions — if he was evasive or incomplete in his answers, even if he stuck to his denial — he may have had his license withheld. People have had that happen to them for far less. 

Against that backdrop, it is not at partisan to say that the allegations against Kavanaugh should, at the very least, result in far more inquiry and questioning of him. It should also go without saying that, if he sticks to what are starting to become less-than-satisfying or less-than-illuminating denials, he shouldn’t be confirmed.

It’s not partisan to say this because the standards to which all lawyers are held are directly invoked here. It is a matter for his chosen profession which, the reputation of lawyers notwithstanding, demands high moral and ethical character of its practitioners.

To become the next Justice of the Supreme Court, Kavanaugh should be obligated to show that he has cleared that considerable bar. 

Craig Calcaterra

Craig is the national baseball writer for NBCSports.com. He writes about things other than sports at Craigcalcaterra.com. He lives in New Albany, Ohio with his wife, two kids, and many cats.