I am writing this blog post before either Judge Kavanaugh or his accuser testify before the Senate. The swirling controversy evokes a compelling but almost certainly improbable hypothetical. What if Judge Kavanaugh admits to having committed the sexual assault, regrets his act, says that the act has haunted him ever since, and that his regret has been an essential catalyst for his maturing into a highly moral individual? (This is a hypothetical; in advance of the hearings and absent a crystal ball, I have no way of knowing whether the assault occurred.)
Continuing with the hypothetical, should the action of a seventeen-year-old be held against him thirty some years later in spite of his truth telling, the courage required to tell the truth, and an apparently exemplary life since that awful incident? That is, should we respond with mercy and forgiveness to Brett Kavanaugh in 2018?
Alternatively, what response to Kavanaugh’s hypothetical confession would be commensurate with justice for his accuser? Justice, in this context, denotes the moral, not the legal, concept. Incidentally, prosecution is probably impossible because of an expired statute of limitations. Consequently, is extra-judicial punishment a moral way to achieve legal justice when regular prosecution is impossible? Does moral justice require denying Kavanaugh the seat on the Supreme Court that he desires? Is that denial morally and/or legally proportionate to the offense? How can we ascertain the ways the purported incident may have altered the victim’s life?
How would Jesus respond? Jesus clearly had earned a strong reputation for forgiving even the worst of sinners. Are moral and/or legal justice (an eye for an eye, for example) and forgiveness (moral or legal, as in a pardon, commutation or decision not to prosecute) incompatible? Is mercy a necessary adjunct to forgiveness?
I strongly disagree with many of Judge Kavanaugh’s opinions and would never have nominated him (or recommended his nomination) for an appellate court, let alone the Supreme Court. However, he is by education and experience well qualified and generally respected by his peers.
In the U.S. political system, the president has the power of appointing federal judges; the Senate’s role is to advise and consent on those appointments. I view the Senate’s role as examining credentials, experience and character to ensure that appointees will honorably fulfill their obligations as judges. Thus, the Senate was wrong to refuse to consider Merrick Garland’s nomination to the Supreme Court by President Obama. The Senate similarly errs when it votes along political lines to confirm appointees. These partisan actions display a disregard for the Senate’s Constitutional responsibility to weigh credentials, experience and character. Furthermore, the Senate’s actions also express a misguided effort to politicize the judiciary.
Without some measure of forgiveness or moral failings that are completely hidden, the character of few people, and perhaps no one’s character, would be worthy of Senate confirmation to important posts such as the Supreme Court or the Cabinet.
Essential questions, it seems to me, in the hypothetical sketched above as well as for a general understanding of forgiveness are:
· Does the person freely accept responsibility for his/her actions?
· Did that confession lead to amended behavior (this is the real definition of the Christian idea of repentance, turning from sin)?
· Has the person, if appropriate, possible and helpful to the injured party(ies), sought to make commensurate restitution?
Those questions point to the key moral issues for resolving the question of whether Judge Kavanaugh, if guilty of sexual assault, merits justice tempered by mercy (i.e., confirmation) or justice without mercy (i.e., not being confirmed). Judge Kavanaugh may have made a private confession (e.g., to a priest) and amended his life, but – presuming in this hypothetical that he actually committed the assault – he has not freely accepted full responsibility for his actions nor attempted at least a partial restitution by apologizing in a timely manner to his alleged victim. Of course, an apology is a very incomplete and inadequate restitution for the unwanted, coerced physical groping of another person, but, as in many cases, more complete and meaningful restitution is impossible. Additionally, at some point the moral failure to freely accept responsibility for one’s actions begins to entail a coverup, which in itself involves a lack of integrity and honesty. Of course, this analysis also begs the question of what legal justice might require.
Although Judge Kavanaugh may have the credentials and experience required of Supreme Court justices, the hypothetical sketched above argues that Judge Kavanaugh lacks the character required of Supreme Court justices if he in fact committed the alleged assault.