A Proposed Standard for the Nominee and for the Senate

A pivotal question that will be asked after Thursday's Senate Judiciary Committee is the standard that should govern Judge Kavanaugh and the senators who will vote on his confirmation. For example, who has the burden of proof? Or what standard of proof should be applied to the allegations?

I would like to suggest a standard that draws on a precedent. The only Supreme Court Justice to resign from office due to a scandal was Abe Fortas. In his resignation letter to Chief Justice Earl Warren, Justice Fortas stated that he was leaving "in order that the Court may not continue to be subjected to extraneous stress which may adversely affect the performance of its important functions." Toward the end of his letter he summarized his position:

There has been no wrongdoing on my part. There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold. So far as I am concerned, the welfare and maximum effectiveness of the Court to perform its critical role in our system of government are factors that are paramount to all others. It is this consideration that prompts my resignation which, I hope, by terminating the public controversy, will permit the Court to proceed with its work without the harassment of debate concerning one of its members.

I think the question for Judge Kavanaugh and the Senate once the investigation is complete is whether his confirmation will subject the the Supreme Court "to extraneous stress which may adversely affect the performance of its important functions." I do not yet know the answer.