Impeach Justice Brett Kavanaugh? – Confusion regarding proof

Impeach Justice Brett Kavanaugh? – Confusion Regarding Standard of Proof; Law, Logic, and Game Theory Can Help Fight Misleading Arguments

Justice Brett Michael Kavanaugh

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WASHINGTON, D.C. (September 18, 2019) – Arguments on both sides of the issue of whether Justice Brett Kavanaugh should be impeached are misleading if not downright incorrect as a matter of law and logic, suggests public interest law professor John Banzhaf, who is also the well known game theory expert who invented the “Banzhaf Index.”

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Some have claimed, for example, that Justice Brett Kavanaugh is entitled to a presumption of innocence.  But this concept strictly applies only to criminal proceedings, and has no place in civil legal actions nor in most administrative proceedings.

Others have argued that we should "believe the women" who have accused him, presumably because it is very likely that they are telling the truth.  But this would upend hundreds of years of fairness and jurisprudence by suggesting that the statements of some witnesses must be given much greater weight than those of everyone else.

But any fair minded person would be outraged by a suggestion that the statements of any class of witnesses - U.S. Senators, law professors, police, etc. - should always be believed, or at least given much more weight than others in any kind of legal proceeding.

Rational actors

Women should be believed, suggests Banzhaf, in the sense that their claims should not be disbelieved or dismissed, and are clearly entitled to serious consideration, but not in the sense that any testimony or other possible evidence to the contrary should be disregarded or discredited.

Some have also claimed that those who oppose a nominee such as Justice Brett Kavanaugh should have to prove allegations of criminal conduct beyond a reasonable doubt because that is the standard applied in criminal trials.  Those on the other side suggest that a nominee should have to disprove any serious and credible allegations against him beyond a reasonable doubt because of the seriousness of having a criminal continue to serve on the highest court.

But both are wrong based upon logic, and upon the game theory type of analysis most investors and others use every day, suggests mathematician Banzhaf.

A central tenant of game theory is that a rational decision maker would not consider only the odds that something has or will happen, but also the consequences of each alternative.

So, in this situation, a Member of Congress should, among other considerations, have to weigh the adverse consequences to the country of having a person remain on the Court if the allegations against him were correct, against the adverse consequences to the country (and perhaps in part to the respondent) if he is truly innocent but nevertheless is impeached and perhaps even then removed from office.

Justice Brett Kavanaugh and game theory

For example, and as an extreme hypothetical to help prove the point, if there were credible evidence that any current Supreme Court justice had in the past masterminded a terrorist act which killed many Americans, having him on the Court would be so unthinkable that he would probably have to rebut the evidence against him, and prove his innocence - possibly beyond any reasonable doubt, or perhaps by some similar very high standard, to avoid being impeached.

On the other hand, if the only credible evidence against a current justice was that years ago he had committed a far less serious criminal act, the harm (if any at all) to the Court and to the country would be much smaller, so a rational decision maker might require far stronger proof against him before taking any action.

In other words, the level of proof which a rational decision maker should require varies with the seriousness of the allegation of wrongdoing - the more serious the change, the lower the standard of proof by those making accusations.

Justice Brett Kavanaugh and stocks

The same type of very basic game theory analysis occurs when most people try to decide whether or not to purchase a stock.

Suppose the prospective buyer has some evidence that a disastrous event might occur which would cause the stock's value to hit zero, and the investor would lose his entire investment.

A logical investor would not take the risk of purchasing or holding a stock if, as he weighs the evidence, the chance of the disastrous event occurring appear to him to be small but something he cannot afford to ignore - say only 5%.

The risk is simply too large to accept even if the evidence is quite weak and not very persuasive, since the magnitude of the adverse consequence is so serious as to be unacceptable - especially if there are other stocks which he could purchase which are likely to be almost as good but without this small probability.

Game theory

That would appear to be directly comparable to putting or even keeping a person on the Supreme Court even if the evidence that he was a murderous traitor is very small and not very persuasive.

On the other hand, if the adverse event - should it occur - would cause only a small dip in the market value of the stock, a logical investor would be much more willing and likely to buy or keep  the stock even if there is a somewhat larger chance that the disastrous event will in fact occur.

That would appear to be directly comparable to putting or keeping a nominee on the Supreme Court if the alleged act, even if criminal, was seen as clearly less serious.

Thus there logically is not - and should not be - only one standard or level of proof regarding impeachment of Justice Brett Kavanaugh, as there is (or at least should be) when a jury decides a criminal case, or a civil one, says Banzhaf.

 



About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu