Opinion, Berkeley Blogs

Senators, show fairness to Kavanaugh

By John Yoo

Senate Judiciary Committee members, take heed: You are not running a criminal trial. You are carrying out your constitutional duty to provide advice and consent regarding Brett M. Kavanaughs nomination to the Supreme Court.

The appointments clause vests the Senate with this check on the president to prevent the appointment of unfit characters, as Alexander Hamilton put it in Federalist No. 76. Until the Senate hears directly from Kavanaugh and his accusers, no one can decide whether the nominee is an unfit character.

We do not know whether, at a party in Maryland sometime in the early 1980s, a 17-year-old Kavanaugh sexually assaulted 15-year-old Christine Blasey Ford. Nor can we know the truth behind similar allegations that may emerge, such as the accusation from Deborah Ramirez, a Yale University classmate who said Sunday that Kavanaugh exposed himself and caused her to touch his genitals without her consent during a drinking party in college. Kavanaugh denies both allegations. (Full disclosure: I worked for the Justice Department from 2001 to 2003 at the same time that Kavanaugh served in the White House counsels office.)

We do know that the Senate must defend its institutional independence in the performance of its constitutional duty. The Senate should understand that it, and only it, can decide how much these allegations should affect Kavanaughs confirmation. When senators judge the credibility of the nominee and the witnesses against him, they will not be choosing between guilt or innocence. They will be deciding whether to approve Kavanaughs appointment.

Performing its responsibility to confirm fit characters requires the Senate to treat Kavanaugh, Ford and perhaps others with fairness. Fairness requires senators to address three issues.

First, the appointments clause does not establish who carries the burden of proof. But every fair process known to our legal system requires the accuser prove allegations. Straying from such a standard would only encourage character assassination of all nominees. Consider a legal system in which husbands, fathers, brothers and sons go to jail, lose their jobs or are expelled from school based solely on unproven allegations of sexual harassment.

That is why Fords testimony is a sine qua non of any fair process. Although Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, renewed her demand Sunday that the committee delay its hearing until the FBI conducts an investigation, it is difficult to see how more investigation would help ascertain the truth. No other named witnesses have publicly stated that either incident occurred.

To be sure, the White House does ask the FBI to conduct background investigations when it evaluates a nominee for executive or judicial office. FBI agents do not make judgments on innocence or guilt; they are only providing information. The FBI would normally encounter allegations such as Fords and Ramirezs during its initial investigation, as with Anita Hills in 1991, and would follow up by interviewing relevant witnesses. Committee staff regularly requests the FBI to follow up on questions raised in a background file.

This did not happen before Kavanaughs hearings because Feinstein learned of Fords charges in a letter in July but only referred it to the FBI last week. Fords decision to go public in The Post damaged the confidentiality provided by a background investigation, which encourages candor, and undermined the FBIs ability to ensure witness accounts are free from influence.

Instead, committee staff can conduct its own interviews of witnesses, as it long has for nominations and other investigations. Because Fords assault allegedly occurred 35 years ago, there is no forensic or physical evidence to gather only witnesses to interview. Ramirezs last-minute claim, like Fords, depends on one persons memory of an event that occurred three decades ago. The choice between these conflicting accounts depends on credibility, which senators can evaluate only after looking Kavanaugh, Ford and perhaps Ramirez in the eye as they testify.

The second question is not about burden of proof, but standard of proof. While Ford and Ramirez should not have to meet a criminal law standard that is, to establish the truth of their charges beyond any reasonable doubt it is fair to hold them to the general standard in civil litigation. In other words, the accusers must show that their claim is more likely than not to be true.

Third, the Senate should remember that its constitutional role requires it to determine the truth, not just provide a forum for the airing of grievances. Ford and Kavanaugh must testify under oath as planned, and the committee should be free to delegate the questioning to lawyers, who have regularly performed this role in congressional investigations, such as for the Watergate, Iran-contra and Whitewater scandals. Elected politicians may prove unwilling to ask both the accuser and accused the difficult questions that courtrooms demand in sexual assault cases.

We are not surprised by the emergence of attacks on judicial nominees. The Supreme Courts growing control over the most controversial political questions in our society has raised the stakes of the appointments process. But the Senate should demonstrate its fitness to perform its constitutional duty of advice and consent by enforcing basic standards of justice and fairness. The Judiciary Committee should be fair to Ford and Ramirez. It must be no less fair to Kavanaugh.

Crossposted from The Washington Post