Kate Shaw is allegedly a law professor. But we’d like to see some concrete evidence first, because we have a hard time believing that a legal scholar could seriously offer up a take like this on Brett Kavanaugh:

Shaw writes:

It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.

It’s natural because due process is a right outlined in the United States Constitution. Ever heard of it, Kate?


Other nominations have been unsuccessful because of private conduct. Another Reagan nominee, Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana use that the F.B.I. had failed to unearth. And the Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after evidence emerged that as a sitting member of the court, Justice Fortas had also been serving as a de facto adviser to President Johnson, and after questions were raised about the propriety of outside payments he had received while on the court.

These allegations weren’t tested with the rigor that would have attached to judicial proceedings; neither evidence nor testimony (where it was given — Judge Ginsburg withdrew before testifying) was subject to the sort of adversarial testing that would occur in a court of law. But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.

Shall we stop her there again for a second?


Shaw concludes:

This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.

First of all, if there are credible allegations, we’d love to see them. Because so far, the allegations we’ve seen are conspicuously lacking in credibility. There can’t be “further corroborating evidence” without there being any corroborating evidence to begin with. And second of all, since when should mere allegations be enough to derail someone’s career?

Of course Chris Hayes thinks this is just brilliant, brilliant stuff:

Oh, you’re biased, Chris, seeing as Kate Shaw is your wife and all. But that piece is not excellently done. Not by a long shot.

Chilling and un-American is right.

We’ll leave you with this from Weekly Standard freelancer Jeryl Bier:

Color us shocked.

Editor’s note: This post has been updated with additional tweets.



Oh, hey. Another shocker. Laurence Tribe loves Shaw’s take, too:

Reminder: Tribe is a Harvard constitutional law professor. In case your kids are thinking about Harvard Law School.