From a 'Due Process' Perspective, the Brett Kavanaugh Hearing Will Be a Farce
"If this were a legal proceeding, many (if not all) of the members of the [Senate Judiciary Committee] would have to recuse themselves."
Christine Blasey Ford has agreed to testify before the Senate Judiciary Committee on Thursday about her sexual assault allegation against Supreme Court nominee Brett Kavanaugh, who will also take questions from the senators about the matter.
Kavanaugh strongly denies committing the assault, and will submit his calendar from the summer of 1982 as evidence that he never attended a house party with Ford and the other people she has claimed were there. On Saturday, a long-time friend of Ford, Leland Ingham Keyser, lent some credence to Kavanaugh's denial: Contrary to Ford's claim that Keyser attended the party 35 years ago, Keyeser said she never met Kavanaugh and was not present at any such party.
"Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford," said Keyser's lawyer in a statement, according to CNN.
It's possible, of course, that she did meet Kavanaugh, and was there on the day of the sexual assault—she just can't remember. Even so, the fact that no relevant witness has been willing or able to back up Ford's eminently plausible but unproven account is notable.
When it comes to the truth of the accusation, I can understand why people might have a hunch one way (evidence of a pattern of alcohol abuse among Kavanaugh's social circle, lack of unbelievable details in accusation), or the other (no other accusers, extensive testimony of Kavanaugh's good treatment of women). But plenty of political experts sound as if they are already certain of Kavanaugh's guilt or innocence.
What's more, some of these people sit on the Senate Judiciary Committee—the very authority charged with deciding whether the allegation is credible enough to deny Kavanaugh a spot on the Supreme Court. This should serve as a reminder that despite all the conservative defenders of Kavanaugh invoking due process, Kavanaugh is not actually entitled to it. If he was, most members of the Senate Judiciary Committee would have to recuse themselves from the vote, since they have made prejudicial statements about Kavanaugh that signal their lack of impartiality.
Take Sen. Mazie Hirono (D–Hi.), who told Jake Tapper that she put Kavanaugh's denial "in the context of everything that I know about him in terms of how he approaches his cases." She described Kavanaugh as "very outcome driven" and having "an ideological agenda," and appeared to suggest that his hostility toward abortion rights somehow gave credence to Ford's accusation. (These remarks drew a rebuke from Tapper, "It sounds to me like you're saying that because you don't trust him on policy… you don't believe him about this party in 1982.")
Or consider Sen. Lindsey Graham (R–S.C.), who asked Fox News, "What am I supposed to do, go and ruin this guy's life based on an accusation?"
Senators are not actually objective fact finders trying to decide whether an accusation has cleared some prescribed burden of proof. They are political partisans elected to their positions by the American people. That's a huge problem, from a due process perspective—due process requires impartiality from the people rendering the verdict.
"If this were a legal proceeding, many (if not all) of the members of the SJC would have to recuse themselves based on public statements that they've made either about this particular issue or the BK nomination more generally," wrote Carissa Byrne Hessick, a criminal law professor at the University of North Carolina, in an informative Twitter thread.
A rival framework for considering the Kavanaugh nomination also has some problems, though: the idea that this is a job application, and thus the senators can reject Kavanaugh even on the slightest suspicion of wrongdoing. For many employers throughout the U.S., that's not actually true.
"The law varies by state, in terms of what you are allowed to do, but it's tricky territory," wrote Patrick Chovanec, an adjunct professor at Columbia University School of International and Public Affairs, in a similarly useful Twitter thread. "The basic idea here is that unproven allegations alone are not an adequate basis for rejecting a job applicant. In fact, depending on how you handle it, it could be an unjust and illegal basis for making your hiring decision."
Neither of these perspectives tell us what the senators should do. But Kavanaugh defenders and detractors should avoid the mistake of claiming what the senators must do is obvious. It's not.
I say this as a staunch defender of due process, even in cases other than criminal trials. Campus Title IX adjudication, which similarly deals with allegations of sexual misconduct, is an example of a quasi-judicial proceeding where due process protections have not always been so strong, to the detriment of the validity of the process. Students accused of sexual misconduct under Title IX may not have the exact same rights as people charged with committing rape, but courts have held that they do possess some of those rights: The Sixth Circuit recently held, for instance, that students in Title IX hearings should have some opportunity to cross-examine each other. (The author of that decision, Judge Amul Thapar, was on President Trump's Supreme Court shortlist, and Senate Majority Leader Mitch McConnell reportedly lobbied hard for Thapar, to no avail.)
If Kavanaugh were a criminal defendant, he would be entitled to a range of protections designed to ensure that no innocent person is wrongfully deprived of life or liberty, even if these protections mean that some guilty people go free. If Kavanaugh were a college student, he would be entitled to equal treatment irrespective of his gender, certain procedural safegaurds, and according to new guidance soon to be released by the Education Department, the presumption of innocence. But Kavanaugh is neither of these things, and thus the decision to confirm him to the Supreme Court is ultimately a political one. No matter what happens at the hearings this week, no one should mistake what they're watching for due process.