Yes, Kavanaugh is entitled to fairness and impartiality. But when it comes to process, let’s be clear: If Ford testifies before the Judiciary Committee, if committee staffers interview her privately or if she puts her story on the official Senate record in some other way, senators aren’t tasked with measuring her accusation or Kavanaugh’s denial by the familiar “beyond a reasonable doubt” standard applied in criminal proceedings, or with rendering a verdict of guilty or not.
Rather, the purpose of Supreme Court confirmation hearings is to allow senators to provide “advice and consent” on the president’s nominees for the nation’s highest court. Whether or not there’s conclusive proof of the alleged assault, every senator is entitled to vote yes or no on elevating Kavanaugh from his current position as a federal appeals court judge to the pinnacle of American law based on their individual, subjective assessments of whatever testimony is provided. Senators also, properly, weigh their constituents’ views on the nominee and the testimony. Even if senators aren’t sure what, if anything, happened between Ford and Kavanaugh, if they think the accusation is probable, or even plausible, and decide that it’s too great a risk to put a maybe-sexual-assaulter on the high court, they’re entitled to vote no. If they believe that Kavanaugh lied under oath in answers to written or oral questions related to any part of the confirmation process, they’re entitled to vote no.
Any forthcoming testimony will occur as part of the confirmation hearing pursuant to Congress’s constitutional role. Under Article II, Section 2, Clause 2, the president has the power to “nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” Normally, senators exercise this authority by delegating to the Judiciary Committee the task of conducting hearings. The committee then votes to forward the nominee for consideration by the whole Senate, where a majority vote is needed for confirmation.
Unlike for a jury, there’s no requirement for unanimity, and the Constitution doesn’t set a standard of proof by which senators must offer their advice and consent. It’s why there was, effectively, nothing President Barack Obama could do when Republican senators chose not to vote on his nomination of Judge Merrick Garland to fill the late justice Antonin Scalia’s high court seat in 2016. Some argued that denying a hearing was a failure of constitutional obligation, resulting in a breaking of norms and a “stolen” seat; others maintained, as Michael D. Ramsey put it in the Atlantic, that “the appointments clause does not impose a duty to take formal action,” given that senators were aware of the nomination and thus considered it.
Kavanaugh’s public hearings, then, and any inquiry now into the accusations against him, are less like a trial and more like a high-stakes job interview — and this job comes with life tenure. The main point of the hearings is to determine the nominee’s fitness for the post. Senators evaluate judicial qualifications, record, demeanor and philosophy. Modern judicial nominees undergo incredibly thorough vetting in preparation because they know that senators may also explore every aspect of their past. Allegations of sexual misconduct fall well within the scope of relevant considerations. Because guilt or innocence isn’t the issue, but instead fitness for the Supreme Court, the burden of proof isn’t, and shouldn’t be, on Ford, the accuser; it remains on Kavanaugh.
Of course, fairness demands that Kavanaugh be allowed to hear Ford’s specific contentions and tell his side of the story. And any responsible senator will weigh the information provided by Kavanaugh and Ford without regard to a predetermined partisan outcome. But there’s likely to be uncertainty at the end of this, and that’s okay.
It’s why the founders didn’t just leave it to the president to install Supreme Court justices unilaterally. They gave him (or, one day, her) that power only with the Senate’s advice and consent.
Almost three decades ago, Anita Hill alleged that Supreme Court nominee Clarence Thomas had sexually harassed her. The Judiciary Committee heard testimony, including Hill’s allegations, and the FBI investigated. Ultimately, the Senate confirmed Thomas.
Since Ford’s allegations surfaced, Hill has lamented how committee members ( all men ) back in 1991 showed deep skepticism of her and failed to grasp the essence of sexual harassment; this time, she has urged them to “get it right ” when it comes to alleged sexual violence. That doesn’t mean the committee should favor Ford’s testimony over Kavanaugh’s, but it doesn’t mean Kavanaugh must be irrefutably proved to have assaulted her, either. “If there is a doubt,” the late senator Robert Byrd (D-W.Va.) said when he voted against Thomas’s confirmation, “I say resolve it in the interests of our country, its future. Let’s not have a cloud of doubt for someone who will be on the court for many years.”
It’s within the committee’s discretion to await any FBI investigation of Ford’s allegations. Alternatively, the panel may move forward with the hearing as scheduled. If Ford declines to testify, the Senate could decide to exercise its subpoena power. To fulfill their constitutional role, senators should proceed thoughtfully and perform their proper advice and consent role. That includes a modicum of deference to presidential nominees — after all, they advise, but the president nominates. Whether we’re talking about Kavanaugh, Garland or Thomas, senators aren’t obligated to vote yes on any nominee, but they must consider the nominees, including the evidence for and against, in good faith and vote according to their conscience, their constitutional oath and their role as representatives of the people.
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