The Gillibrand Standard

The silver lining of the Kavanaugh show trial, if one may be allowed to speak of such a thing, is that a great many formerly less-than-reliable conservatives finally understand. They have come to realize what the Left has in store for them, for us, and for the nation.

Many, but not all. If one pays attention to the national cacophony, one notices—like Sir Arthur Conan Doyle’s dog that didn’t bark—the silence, or coy dodges, of many #NeverTrump “conservatives.”

All along, they have said that their objections to Trump are about him personally—his personality, rhetoric, alleged lack of principle and so on (and on!). Whereas they—they insist; just ask them!—stand for eternal conservative principle. You know, conservative principles such as original intent jurisprudence and standing up for men and women of good character, moderate rhetoric, unimpeachable family and private lives, and exemplary records of public service.

Men such as—just to pick a name at random—Brett Kavanaugh.

Judge Kavanaugh—aside from being honorable, intelligent, decent and genuinely principled—is one of them. An establishment Republican. A beltway lifer. A Bush White House veteran. A product of elite schools and conservative institutions intended to groom him for high office. So where are they in support of the judge? Either silent, or siding with the Left.

Accusation vs. Calumny
Let’s examine more closely that Left—the side they’ve joined. The Left has created a new “standard” for American politics—indeed, new in the entire history of Anglo-American jurisprudence. Let us call it the Gillibrand Standard, after its most insistent advocate, Senator Kirsten Gillibrand (D-N.Y.).

According to the Gillibrand Standard, accusation suffices to destroy. Not only is no corroborating evidence necessary, to ask for such evidence makes one just as guilty as the accused. Especially monstrous is to ask questions of the accuser; that is to repeat or compound the alleged crime. The accusation, once stated, immediately takes on metaphysical certainty. To doubt is to blaspheme.

Actually, “accusation” is too generous. Machiavelli distinguishes between “accusation” and “calumny” in order to demonstrate that “as much as accusations are useful to republics, so much are calumnies pernicious.” The difference is that accusations are public, subject to critique and refutation, and a mendacious or even inaccurate accuser pays a price. Calumnies, by contrast, “have need neither of witnesses nor any other specific corroboration to prove them, so that everyone can be calumniated by everyone; but everyone cannot be accused, since accusations have need of true corroboration and of circumstances that show the truth of the accusation.” A more incisive summary of the Gillibrand Standard cannot be found.

The Left used to be so concerned with due process, the rights of the accused, and other niceties of legal procedure that, 50-odd years ago, in the name of those principles they unleashed a great crime wave on the United States, from which it took our country decades to recover (and it still hasn’t, not fully). Now they’ve turned on a dime to insist that those principles don’t matter because “a confirmation hearing is not a trial court; it’s a job interview. No one is entitled to a Supreme Court seat.” And, apparently, in not being entitled to a seat, nominees are therefore not entitled to the presumption of innocence, the right to confront their accusers, or to any standard of proof beyond “I say.” For the Left, the mere fact that a confirmation hearing is not a trial is a license to smear.

Accusation As Atom Bomb
There is but one limiting principle to the Gillibrand Standard: It shalt be used only against the Right and Republicans. Credible accusations—with evidence, witnesses, contemporaneous police reports—against Democrats and liberals are not merely to be ignored but also stonewalled and attacked, alleged victims and witnesses alike smeared. That is, until this or that liberal is no longer useful in the moment and safely can be discarded. Throwing an expired liberal to the wolves now and then is useful to maintain the fiction of evenhandedness.

This is obviously outrageous, unjust, unfair, and offensive to any conceivable standard of decency. Just as obvious, the Democrats and Left not only do not care, they welcome the weaponization of accusation. Their only conceivable regret is that it might not work this time. But even if it doesn’t “work” in the sense that Kavanaugh is not confirmed, they know that it “works” in other ways. It rallies their base. It drives fundraising. It degrades public standards of decency and credibility, making its effective use more likely in the future. It delegitimizes institutions—in this case, the Supreme Court, which, with the addition of Justice Kavanaugh, may later rule constitutionally and correctly in ways the Left does not like. And, most important for the nihilistic Left, it delegitimizes and dehumanizes—makes a villain out of—Kavanaugh himself.

It is hard to say what is the most shamelessly disgusting aspect of this affair. I offer as a candidate the following tactic. First, smear your target with uncorroborated, unprovable and almost certainly false allegations. After you have—inevitably—failed to substantiate those charges, insist that your target withdraw since his reputation will now forever be under a cloud and his rulings will lack popular legitimacy. This is akin to breaking an opponent’s arm before a sporting event and then insisting that he forfeit.

It’s clear that whether or not Kavanaugh is confirmed, this tactic (whether the accusations are of a sexual or some other nature) will be the Left’s go-to for all future Republican judicial nominees and, before long, cabinet nominees as well. The Democrats are confident that the Republicans will never resort to the same tactic against one of theirs. They are right to be confident. Whether out of principle or pusillanimity, the Republicans do not have it in them to turn the tables in this way. Perhaps that is for the best.

One must marvel, however, at the remarkable spine they’ve shown in this process. When the words “Lindsay Graham” and “savior of the republic” bubble up from one’s brain at the same time, in a completely non-ironic way, something fundamental has changed. Nor can I join those who second-guess Senators Chuck Grassley and Mitch McConnell. Maybe they could have done this or that differently and we’d be in a better position than we’re in now. Who knows?

What I do know is that we are where we are. The Democrats’ maneuver to prolong the hearing was thwarted. The nominee was voted out of committee. The Senate heads to the floor. What else could we ask of the leadership in the face of this disgrace?

Only one thing: confirmation. I believe they have every intention of delivering it.

Another Week of Calumnies
The price to secure one Senator’s vote is one week’s delay while the FBI investigates—just as the Democrats have insisted. They will have cause, I am confident, to rue that insistence. The FBI will almost certainly clear Judge Kavanaugh of any wrongdoing or, at the very least, will report that it could find no corroboration of the charges against him. That would be a grave blow to Kavanaugh’s senatorial calumniators’ credibility—if they had any. In truth, the Democrats never wanted an FBI investigation. That was merely an excuse to get what they really wanted: delay through the midterms. They know that their calumny will not long survive contact with impartial examination. They benefit by sowing doubt, muddying the waters, and impeaching the credibility of others’ without proof or even evidence. A formal statement memorializing the emptiness of their calumny is not in their interest.

But it is in the judge’s. It will serve as vindication (of sorts) for him and will undermine the talking point that his subsequent rulings are tainted by uncertainty and that he holds his court seat illegitimately.

While I fully expect the judge to be vindicated by the FBI, I also expect his (our) enemies to use the intervening week to dredge up fresh and similarly incredible calumnies. I expect the Senate leadership to hold firm, as they held firm against the preposterous charges flung after the first was exposed. The Democrats have hung their all on that first case.

By right they ought to be bound by the outcome. But there is no “right” in their view, only will to power. If—as I fully expect—the FBI reports that it cannot corroborate the charges against Judge Kavanaugh, the overwhelming mass of Democrats—including all ten members of the Judiciary Committee—will still vote against him. That should forever expose the lie that this travesty has anything to do with the alleged events of 1982. It is about two things only: the Left’s abhorrence of constitutional jurisprudence and its sacralization of abortion. Saying so forthrightly and voting on that basis would at least carry a semblance of honesty and be healthier for the republic—but these are concepts to which the modern Left is implacably hostile. President Trump had it exactly right: there is evil at work here.

Judge Kavanaugh’s fate—and ours—now comes down to three, or perhaps four, senators, some of whom have pledged fealty to original intent jurisprudence and expressed disgust at the coarsening of American political practice. For the sake of our party, of our institutions, of our country, of decency and truth itself let us hope they vote aye.

If they do not—if this tactic is allowed to succeed—if the Gillibrand Standard becomes the de facto new law of the land—we will cross a Rubicon beyond which I fear there is no return.

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Photo Credit: Alex Wong/Getty Images

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About Michael Anton

Michael Anton is a lecturer and research fellow at Hillsdale College, a senior fellow at the Claremont Institute, and a former national security official in the Trump Administration. He formerly wrote under the pseudonym Publius Decius Mus when he was a senior editor of American Greatness. He is the author most recently of The Stakes: America at the Point of No Return.