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Due Process for Judge Kavanaugh

eye on the news

Due Process for Judge Kavanaugh

Senators eager to destroy his nomination must be restrained by the rule of law. September 25, 2018
Politics and law

Not one United States senator knows whether Judge Brett Kavanaugh’s accusers are telling the truth. And yet, quite a few of its members—all Democrats—have already decided that they are telling the truth. Connecticut’s Richard Blumenthal and New York’s Kirsten Gillibrand, for example, have declared that they believe the allegations of Professor Christine Blasey Ford, though she has yet to testify. Senator Mazie Hirono of Hawaii insists that Ford “needs to be believed,” and that men need to “just shut up and step up.”

Oddly enough, the same Democratic politicians who seem to have made up their minds about the matter are the very ones calling for a “full investigation” into  Ford’s accusations, as well as those of Kavanaugh’s former Yale classmate Deborah Ramirez. This should set off alarms for anyone concerned about the old-fashioned notion of due process—that is, the procedural fairness that Anglo-American law guarantees to those accused of crimes.

The hallmark of due process is the presumption of innocence. Imagine a judge who announces—before the trial even begins—that he thinks that the accused is lying. Defense counsel would rightly demand that the judge recuse himself. But no recusal has been offered by those senators who would sit in judgment on the Supreme Court nominee.  

Because every defendant is presumed innocent, due process also requires that one’s accusers bear the burden of proof. Today, however, this tradition has been turned on its head, with politicians and commentators on the left asserting that the burden is on Kavanaugh—and any other man accused of sexual misconduct—to disprove the accusations against them. Blumenthal, for example, tweets that Kavanaugh has “a responsibility to come forward with evidence to rebut” Ramirez’s accusations of sexual assault. Anita Hill, the law school professor who accused Justice Clarence Thomas of sexual harassment during Thomas’s 1991 confirmation hearings, has argued that Kavanaugh bears the burden of disproving Ford’s allegations.

Proving that something did not happen—particularly something 35 years ago—is virtually impossible. Compounding these attempts to reverse the traditional evidentiary burden, Democratic senators supported Ford’s initial demand that Kavanaugh testify before Ford, thus denying him even the chance to respond to her specific allegations.

Commentators on the left have argued that due process is irrelevant here because Senate confirmation hearings do not constitute a trial. Rather, the hearings are more like a job interview: Kavanaugh wants the job, so he bears the burden. But this argument is too clever by half. Kavanaugh is not merely a job applicant; he is a sitting Court of Appeals judge. If the accusations against him could be proven, he would almost certainly be forced from the bench. At a minimum, if the accusations are deemed credible, they will stigmatize Kavanaugh for years. In the context of state and local governments, courts have consistently held that public employees deserve due process when faced with government action that threatens their jobs or good reputation. Is it too much to hold senators to the same standard before they destroy the career of one of America’s most distinguished jurists?

Even where due process is not strictly required, the basic principle of impartial justice—a goal that the Senate Judiciary Committee ought to embrace—demands something akin to due process. The Left’s impatience with procedural fairness in the Kavanaugh hearings echoes the Obama administration’s requirement that university administrators dispense with standard protections for students accused of sexual assault, such as the right to cross-examine the accuser. The erosion of due process on campus has only recently been reversed, thanks to revised guidance from the Department of Education.

The groundswell of support for the victims of sexual assault is a welcome development, but it does not change the fact that allegations of serious crimes must be judged on a case-by-case basis. The allegations against Brett Kavanaugh should receive an impartial hearing with sensitivity to the accusers—and due process for the accused.

Photo by Drew Angerer/Getty Images

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