Markkula Center for Applied Ethics

Let the FBI Investigate

Supreme Court

Supreme Court

Hana Callaghan

AP Photo/J. Scott Applewhite

Hana Callaghan is the director of Government Ethics at the Markkula Center for Applied Ethics. Views are her own.

President Trump asserts that the Democrats are working hard to destroy Supreme Court nominee Brett Kavanaugh, whom he calls a wonderful man.  Lyndsey Graham claims that Democrats are engaging in wholesale character assassination of Kavanaugh. Are they?  Are the Democrats so anxious to defeat President Trump’s Supreme Court nominee they will go to any lengths to ruin the reputation of a good and honest man? Without a credible FBI investigation into the allegations of sexual assault by Kavanaugh, how can we know whether this is true?

There are those on the opposite side who argue that women who make accusations of sexual assault must always be believed. The argument goes that all accusations are credible because the accusers have no motivation to lie, and given the demeaning treatment accusers receive, they have greater motivation to remain silent than to come forward. But without a further vetting of these particular claims in this politically charged environment, how can we be sure that the motivation isn’t political?

And then there are those who don’t care whether the accusations are true or not, claiming that these youthful indiscretions have no bearing on whether Judge Kavanaugh will make a good Supreme Court justice. They downplay his alleged actions by calling them “horseplay.” However, the acts alleged, if proven, were not consensual roughhousing but nonconsensual criminal sexual assault.

The Senate is constitutionally tasked with making one of the most important decisions that government can make—whether a Supreme Court nominee should be appointed to the highest court of the land. The Markkula Center for Applied Ethics has developed a framework for ethical decision making that can assist anyone who desires to make ethical choices.  The first thing we advise decision-makers to do is to get all of the relevant facts.  The decision-maker’s inquiry should include whether there are any facts that are not known, and whether all relevant persons have been consulted. An FBI investigation can help provide senators answers to these questions.

In fact, the accusers in this case have asked for validation of their claims by the FBI. The Democrats haven’t asked that these claims be taken at face value; rather they have urged the president to direct the FBI to investigate.  Republican Senator Lisa Murkowski has also voiced her approval of an FBI investigation.

Whether Kavanaugh engaged in sexual assault of his accusers does matter in the context of a Supreme Court appointment. A Justice Kavanaugh will be in the position of potentially hearing matters pertaining to sexual crimes and sexual harassment in the workplace. It is important then to assess his attitude toward these types of victims and identify any bias he may have in favor of perpetrators. Does he, too, deem sexual assault to be mere, “horseplay”?

There is no ethical code of conduct governing Supreme Court justices.  We must rely on the ethics of each individual justice to govern his or her conduct once in office. As Thomas Jefferson once wrote, “The most sacred duty of Government is to do equal and impartial justice to all of its citizens.”  Appointments to the Supreme Court are for life.  Accordingly, senators have to get it right when they consent to a Supreme Court appointment. In order to make sure that future justices will fulfill Jefferson’s sacred duty, senators must have all of the facts necessary to inform their decision.

Sep 26, 2018

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