On Guilt by Association

During the September 27 Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court, Orrin Hatch said this:

Let's at least be fair and look at facts or the absence thereof," Mr. Hatch said. "Guilt by association is wrong. Immaturity does not equal criminality. That Judge Kavanaugh drank in high school or college does not make him guilty of every terrible thing that he's recently been accused of.

My reaction is that it depends on what “guilt by association” means. Certainly, you should be able to associate with any other human being, no matter how bad they are, without there crimes tainting you—unless through your association you gain knowledge of awful crimes it would be useful for the police or other constituted authorities to know, that you fail to share. If there was a rape culture at Georgetown Prep, and Brett Kavanaugh knew about it and did nothing, that is a serious black mark against him.

Note here that while attorney-client privilege is close to absolute, even therapists are required by law to report any suspicion of sexual abuse. So whatever privilege one thinks should extend to loyalty to what one’s friends tell one in confidence, it should not extend to helping one’s friends conceal sexual assault. Part of the test is whether someone could tell, and let themselves be moved by the fact, that sexual assault is an awful crime.

It seems it should be possible to determine by investigation whether there was such a rape culture at Georgetown Prep and whether Brett was in the in-crowd to such an extent that it would have been hard for him not to know about it. For a juvenile to know about and do nothing about such wrongdoing may not be worthy of jail time (whatever the statute says), but it should be disqualifying for a seat on the Supreme Court, even 35 years later, short of a forthright renunciation of such inaction in one’s past. We want to have on the Supreme Court folks who were straight arrows as kids—or who have admitted wrongdoing—whether by action or inaction—and turned over a new leaf.

Of course, Brett Kavanaugh may be guilty of worse than inaction. But even in that case it may be easier to prove that he didn’t lift a finger to stop the rape culture of friends.