Con­fir­ma­tion hear­ings aren’t crim­i­nal tri­als. For­get about ‘rea­son­able doubt,’ says law pro­fes­sor Caprice Roberts.

The Washington Post Sunday - - OUTLOOK - Twit­ter: @capricel­roberts Caprice Roberts is a vis­it­ing pro­fes­sor at the Uni­ver­sity of Flor­ida Levin Col­lege of Law.

All week, as mem­bers of both par­ties jousted over Chris­tine Blasey Ford’s al­le­ga­tion that Supreme Court nom­i­nee Brett Ka­vanaugh sex­u­ally as­saulted her in high school, we’ve heard calls that Ka­vanaugh is en­ti­tled to due pro­cess, with some sug­gest­ing that air­ing Ford’s claims in a Se­nate hear­ing is po­ten­tially un­just. Sen. Rob Port­man (R-Ohio) called the pro­ceed­ings “very un­fair.” Sen. John Kennedy (R-La.), a mem­ber of the Se­nate Ju­di­ciary Com­mit­tee, averred that “this is no coun­try for deny­ing peo­ple due pro­cess.” Sen. Su­san Collins (R-Maine) pro­posed a courtroom-style ex­am­i­na­tion of Ford and Ka­vanaugh by at­tor­neys, in ad­di­tion to ques­tion­ing by com­mit­tee mem­bers. The Fed­er­al­ist’s Mol­lie Hem­ing­way com­plained that the Se­nate is “an in­ap­pro­pri­ate place to lit­i­gate claims of sex­ual as­sault.”

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 cri

mi­nal 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 Sen. Su­san Collins (RMaine) has said lawyers for Brett Ka­vanaugh and Chris­tine Blasey Ford should be al­lowed to pose courtroom-style ques­tions at a Se­nate hear­ing on Ford’s ac­cu­sa­tions. 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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