Jurisprudence

Brett Kavanaugh Can Be Held Accountable for His Alleged Actions at Age 17

The Senate need not punish the Supreme Court nominee. It must determine if he’s telling the truth.

A protester holds a sign that says "KAVA NOPE" at a rally near Capitol Hill on Sept. 4
A protester holds up a sign during a rally near Capitol Hill against the confirmation hearing for Judge Brett Kavanaugh in Washington on Sept. 4.
Andrew Caballero-Reynolds/AFP/Getty Images

Does a middle-aged man who attempted rape as a teenager deserve a lifetime appointment to the Supreme Court of the United States? This question has become urgent in light of Christine Blasey Ford’s allegation that Supreme Court nominee Brett Kavanaugh assaulted her in high school, pinning her down, covering her mouth, and attempting to undress her before she managed to escape the room. Kavanaugh totally denies the accusation, stating, “I have never done anything like what the accuser describes—to her or to anyone.” It appears the Senate will hear from both Ford and Kavanaugh at a public hearing next week before taking any votes.

What if a majority of the Senate concludes that Kavanaugh probably did assault Ford at age 17? Should that fact disqualify him from SCOTUS? Not everyone is so sure. The Washington Post’s Megan McArdle tweeted that she “wouldn’t disqualify anyone from higher office because of anything they had done as a minor.” Writer and academic Tom Nichols doubted whether the accusation, if true, is even relevant today. Rosa Brooks, a professor at Georgetown University Law Center, declared in a viral thread that she is “uncomfortable with asserting that [Kavanaugh’s] behavior as a teen tells us anything about his ‘character’ now.” David Plotz, CEO of Atlas Obscura and Slate’s former editor in chief, signaled his agreement with Brooks.

It is entirely reasonable to feel uncomfortable holding 17-year-olds strictly liable for their misdeeds for the rest of their lives. Fortunately, that is not what’s happening here, which makes this argument around age a red herring. Kavanaugh is not asking for absolution; he is denying Ford’s allegations outright. The real question, then, is not just whether Kavanaugh assaulted Ford as a teenager: It is whether he is telling the truth about those actions all these years later. Those of us calling for a full and fair hearing are not only interested in Kavanaugh’s alleged actions 35 years ago. We are concerned about his response to those accusations today.

To be clear, Brooks makes an excellent point about the risks of holding 17-year-olds to the same standard as adults, particularly with regard to crime. The sad reality is that our criminal justice system does tend to apply unreasonable standards to minors, to devastating effect. Some states automatically try 17-year-old defendants as adults, and prosecutors in most states can charge 17-year-olds as adults with the assent of a court. As a result, teenage defendants who are not even old enough to vote are subjected to longer prison sentences in more dangerous facilities. These minors have less access to rehabilitative services and higher rates of recidivism than peers who remain in the juvenile justice system. It should come as no surprise that in some jurisdictions, racial minorities are more likely to be tried as adults than whites.

The Supreme Court has placed some limits on this practice. In 2005, in Roper v. Simmons, the court prohibited the execution of defendants who committed their crime before the age of 18. Five years later, in Graham v. Florida, the court forbade a sentence of life in prison without parole for juvenile offenders who commit non-homicide offenses. In 2012’s Miller v. Alabama, the court struck down laws that required mandatory life without parole for minors upon conviction of certain crimes.

These decisions have provided a vital vindication of the Constitution’s bar against “cruel and unusual punishments.” It’s also worth noting that the conservative wing of the court has consistently objected to them, often detailing the brutal crimes committed by 17-year-olds to illustrate the righteousness of life sentences for minors. “The category of murderers that the Court delicately calls ‘children’ (murderers under the age of 18),” Justice Samuel Alito wrote in Miller in 2012, “consists overwhelmingly of young men who are fast approaching the legal age of adulthood.” He described a “typical” juvenile killer “who committed a brutal thrill-killing just nine months shy of his 18th birthday” and noted: “Seventeen-year-olds commit a significant number of murders every year, and some of these crimes are incredibly brutal. Many of these murderers are at least as mature as the average 18-year-old.”

That may be true. It’s also true that none of those juvenile murderers who faced a real risk of life imprisonment were wealthy white guys. The rules for rich white people (and their kids) are just different, and not only in heinous cases. While affluent families can pay an attorney to expunge their children’s criminal records, the process is almost impossible for indigent defendants in many states. A juvenile criminal record can dog an individual throughout his life, preventing him from going to college and getting a job. Prosperous parents can make this problem go away for their children. The average juvenile offender, meanwhile, is on his own.

Rosa Brooks is also right that the correct response to this disparity is to level up, not down—to extend the privileges that wealthy minors already get to everybody else. Adults, she wrote, “should not be shadowed forever by misdeeds as children.” And of course they shouldn’t. So how, then, does our criminal justice system recommend we assess minors’ misdeeds with their potential to grow and change? The Supreme Court has directed judges to consider a juvenile offender’s demonstration of rehabilitation in determining whether he should be released from a life sentence. An adult who expresses remorse and requests forgiveness for his youthful crime, who apologizes to his victims and tries to better himself, deserves our empathy. One who refuses to acknowledge that he committed a crime may not.

We still have much to learn about the events in question. But if Ford’s allegation is true, it seems Kavanaugh falls into this latter category, standing by a Friday statement in which he “categorically and unequivocally” denied Ford’s accusation. That means the question of whether he should receive our clemency is purely hypothetical.

If senators decide that Kavanaugh did commit assault and choose to oppose him, their vote may also rest on the fact that, in their estimation, he lied about the attack. (Sen. Susan Collins, a moderate Republican, has already indicated that lying about the alleged assault, rather than the act itself, would be “disqualifying.”) It is perfectly consistent to believe that nobody’s life should be ruined for committing a crime at age 17—and that any adult who lies about that crime should not be elevated to the Supreme Court. Rejecting Kavanaugh’s confirmation on this basis wouldn’t be doling out punishment, but rather withholding a privilege.

Luckily, the Senate is not a criminal court; these charges need not be proved beyond a reasonable doubt. Senators’ only duty in assessing such appointments is to provide “advice and consent,” if they so choose. To ascertain whether Kavanaugh has earned their vote, they should not just ask if he committed assault as a teenager: They must also decide whether the nominee is being truthful today. Under these circumstances, evasion is unacceptable, and any attempt at dissimulation should be rejected. Kavanaugh must answer to these charges directly and correctly. If he does not, the Senate will have no good reason to give him its consent. And it will have more to do with his words at age 53 than his actions at age 17.