I have dedicated my professional existence to defending teenagers who are accused of crimes. I fight every day to ensure that the mistakes a teenager makes do not haunt that young person for the rest of their lives. I defend kids whose liberty is on the line because they are accused of what Judge Brett Kavanaugh is accused of doing. My dad once said I was “God’s gift to kids who do bad things.”
Following Kavanaugh’s increasingly difficult path to the Supreme Court last week has frustrated me, but the reasons for that frustration may surprise you. Politics have obfuscated the purpose of these hearings and cloud the real issues. Confirmation hearings are about due process and the standard, or level, of proof sufficient to refuse to confirm a nominee.
Due process means that Americans value fairness in our procedures in order to obtain a just outcome. Due process means that how we arrive at a decision has value in and of itself.
This concept is essential to any criminal trial. On the one hand, due process is clearly defined in criminal procedure. The Constitution, on the other hand, does not detail how a Supreme Court confirmation hearing should be conducted. Perhaps because of this, these two concepts have been conflated, when they should be distinguished.
Due process is contextualized—you do not need the same procedural safeguards at a confirmation hearing for a judicial appointment as you do in a criminal trial where the liberty of the accused is at stake.
Due process in criminal trials has its foundation in the Bill of Rights. The Constitution guarantees the accused a fair trial, an ability to confront and cross-examine witnesses, a speedy trial, and access to information in the government’s possession that could reduce his responsibility or exonerate him.
The higher the stakes, the more detailed and specific the process is and should be: When an individual’s liberty, or even life, is at risk, there are stringent safeguards. Due process in a criminal trial includes a burden of proof being placed on the prosecutor, and a very high standard of proof—beyond a reasonable doubt.
Brett Kavanaugh’s liberty is not at stake in these proceedings. He is not facing jail. Kavanaugh is not accused of a crime or a juvenile offense. Though charges of sexual misconduct against children are sometimes filed in court with only a date range and not a specific date, Kavanaugh is not presently charged.
This is a Senate confirmation hearing for a lifetime appointment to the highest court in the land. There is no entitlement to this position. It is a privilege and a great honor.
Kavanaugh faces losing one of the most powerful and revered positions in the world. He is not even facing impeachment from his current position at this time. Not being appointed to the Supreme Court is not the same as losing your liberty. Surely, not having committed a crime cannot be the standard of proof for a lifetime judicial appointment to the Supreme Court.
So, what principles guide this decision? What do we care about as a country? Judicial ethics tell us that we care about judges being impartial and fair—and that we care as much about maintaining an appearance of impartiality as we do about actual impartiality. We care about judges affording everyone who comes before them patience, respect, dignity, and fair procedures. We care about the relationship a Supreme Court nominee will have with the American people. We care whether the nominee will be perceived as legitimate and therefore promote the rule of law.
Do we have enough information?
For many Americans, the case is clear-cut and Ford’s allegations ring true. For others, it may be difficult to reconcile their two versions of events—her credible accusation and his adamant denial. For this confirmation process, it is not necessary to reconcile their versions, to hear from Mark Judge, Deborah Ramirez, or the FBI. There is ample information from Kavanaugh himself: his demeanor, his ability to be impartial, and his temperament.
One hundred senators must refocus on one issue—is Kavanaugh the right person to serve as a Supreme Court justice for the rest of his life? There is legitimate concern that Kavanaugh cannot be fair and impartial. There is widespread concern Kavanaugh cannot sit on the Supreme Court because he will not be accepted by the American people. This case is simple and clear. Enough is enough.