Last Friday morning, Senator Jeff Flake announced he would vote to confirm Brett Kavanaugh as the next U.S. Supreme Court justice. Although he “left the hearing with as much doubt as certainty” about whether Kavanaugh assaulted Dr. Christine Blasey Ford when they were both in high school, Flake justified confirmation on the vague grounds that “the Constitution’s provisions of fairness and due process apply here.”
Since Ford and Kavanaugh appeared before the Senate last Thursday – both testifying with 100 percent certainty that the other was wrong – the concept of due process has been a consistent theme of Kavanaugh’s defense. But it’s surprising how thinly developed his proponents’ argument has been on this topic. In National Review, Rich Lowry invoked Atticus Finch for the simple proposition that sometimes accusations are false. On the Senate floor, Majority Leader Mitch McConnell said Kavanaugh must be confirmed because in America, no one is guilty until proven innocent. This casual analogy of criminal law to a Supreme Court confirmation leaves a lot to be desired.
The dialogue is in such a sorry state, I think, because most people aren’t trying to persuade each other. And that’s a bad sign. It’s not that millions of us are inexplicably invested in the personal fates of Ford or Kavanaugh. It’s that, without a reliable system for evaluating assault allegations against people seeking power, the outcome of this confirmation process – whatever it is – is going to set a precedent that terrifies about half of us on a deeply personal level.
“The left’s all-out assault on [Judge Kavanaugh] is clarifying because it shows that the ‘resistance’ is really about anything and everything conservative in America,” the Wall Street Journal’s Editorial Board concluded. “Republicans have figured out that if the left can willfully, even gleefully, destroy a man as distinguished as Brett Kavanaugh, they can and will do it to any conservative who threatens their grip on power…. Republicans across America can see … that the left hates them as much or more than they loathe Mr. Trump.”
“[Republicans] are literally playing out on the national stage and in real time what it feels like to be overpowered. They won’t take no for an answer. They won’t listen or slow down. They won’t stop. The more we say no, the more angry they get. The more we ask them to stop, the more entitled they feel…. Until finally, they plan on ‘ramming’ through his nomination while we are supposed to just take it,” wrote Larisa Alexandrovna. “Us: Crying. Them: Angry, yelling, ramming. This is why I am upset.”
Not confirming Kavanaugh condemns a good man as a monster. Confirming Kavanaugh condones sexual abuse. Think of your brother, your son, they say. Talk to me when you’ve walked in the shoes of your sisters and daughters, I respond. And there it stays.
So, the stakes are high. But whether the outcome enables abusers or liars, our increasing fear of each other will lead both sides to the same conclusion: When the naked exercise of power is available, “we” can’t afford to clothe it in the legitimacy of regular procedures, because “they” will only use those procedures as another chance to hurt us.
But a serious due-process debate is exactly the argument we should be having, and at length. The focus on Kavanaugh (who should definitely withdraw) has deprived us of a more productive conversation about what process is due in this situation and, more importantly, what its goals are. These are the questions that inspire the fear infecting all of politics right now: Do Republicans even care about sexual assault? Can a victim’s testimony, often all she has, ever be enough to justify denying the accused power or other opportunities? Do Democrats recognize the devastation of reputational harm? Would an intimate, immature misunderstanding be enough to close off professional opportunities that would otherwise be merited?
What if honest people started trying to answer each other’s questions and assuage each other’s fears? In a real discussion about due process, that’s what we’d do. Because it’s not Ford or Kavanaugh we really care about. It’s all the poor souls up next.
Due process, moral and legal
Most people have a general sense of what “due process” means. The basic idea is that decisions about a person’s rights should be made fairly. “Fair” means that the decision doesn’t depend on whose rights they are or what will make the decider happy. Instead, it uses a process, common to all parties, that’s specifically designed to consider the relevant facts and perspectives.
This principle is the foundation of the rule of law. It asks people to accept decisions that came from a fair process, even when those decisions happen not to be favorable to them.
From the playground kickball game to the executive boardroom, people are constantly negotiating decisions that will make some better off and others worse off. Decision rules agreed on beforehand give legitimacy to outcomes with negative consequences. But how do we know if the rules themselves are fair?
Constitutional due-process requirements provide a very useful framework for developing good decision rules. When a government action might affect your individual right to life, liberty, or property, the Fifth and Fourteenth Amendments give you the right to receive reasonable notice of what might happen and the opportunity for your position on it to be heard. The more serious the deprivation of your rights could be, the more thorough the notice and hearing procedures should be: A decision that could mean you lose your house should take more pains to get it right than a decision that might impose just a $30 fine on you.
A good-faith argument for due process
If they wanted to, Republicans now could make a serious argument that all Supreme Court nominees deserve certain procedural protections.
Like many others, I’ve pointed out that no one is entitled to a seat on the Supreme Court, and I definitely don’t think Judge Kavanaugh would have a constitutional due process claim if he weren’t confirmed. But whatever one thinks of Kavanaugh, his confirmation process and the allegations it elicited have shredded his personal and professional reputations. I doubt there’s a single person in his orbit who hasn’t been negatively affected by the ugly controversy that surrounds him and now will follow him wherever he goes. The fundamental interests implicated by these circumstances are akin to liberty and property, even if they can’t be the basis of a legal claim.
Nominees, including those guilty of sexual assault, deserve a process that doesn’t threaten to destroy the lives they’ve built. But given the white-hot political valence of the Supreme Court and lifetime judicial appointments, there won’t be a better process unless the Senate formalizes one. Yes, more rules would limit flexibility in the advice-and-consent role. But if Senate procedures don’t anticipate sexual misconduct allegations against powerful people who are being offered even more power, then the legitimacy of future appointees, like Kavanaugh, will be crippled well before their investitures.
New rules should flow from general due-process considerations. If there’s an accusation, which of the nominee’s interests should get procedural protections? If he has protected interests, what risk to those interests does he face? How do his interests compare to the public interest in filling a SCOTUS seat prudently but efficiently? What is the nominee entitled to know about the accusation? What is the role of senators at a merits hearing, and what is the nominee’s burden (if any)? How serious are the consequences of error in either direction? In good-faith negotiations, the answers to these questions would start to address fears on both sides.
Republicans should propose some procedures designed to weed out spurious claims against future nominees, if that’s their main concern. But they should also invite Democrats to propose procedures designed to discover any credible allegations early in the process. While we’re talking about due process, Democrats might also have some ideas about the scope of document production and whether nominees like Merrick Garland are entitled to any Senate consideration at all.
Sketching an honest process
Due-process rights are usually invoked as individual civil liberties. But people who’ve been targets of sexual misconduct and their supporters are also making a kind of process claim. The fact that most sexual assault and harassment goes unpunished means that the processes we’ve been using to adjudicate those claims are bad at uncovering the truth. According to the Rape, Abuse, & Incest National Network (RAINN), one in six women will experience a rape or attempted rape in her life. Out of every 1,000 rapes, only 310 will be reported to police, 11 will be referred for prosecution, and just seven will result in a felony conviction. Compare this to assault & battery crimes more generally, where over 627 are reported and 105 are referred for prosecution.
This dismal track record isn’t simply the result of respecting the rights of the accused. It also incorporates the cultural reluctance to give weight to women’s words, the trivialization of female pain, and the normalization of male sexual aggression. Case-by-case, it’s almost always wrong to judge the fairness of a process by its outcome. But given the stark numbers on sexual assault and the strong incentives for victims not to report, our current processes don’t offer anything like justice. And they certainly shouldn’t be a model for a Senate confirmation inquiry.
I’m no expert on the inner workings of the legislature, but here’s a rough sketch of what a better process could look like. I’d start from two propositions: First, sexual assault will generally be disqualifying, since no American should be subject to a high court occupied by her or his attacker. Second, both parties have a right to confidentiality that outweighs the public interest in transparency.
The Judiciary Committee can define minimum standards and mitigating factors for what types of incidents merit further investigation. Since sexual assault would likely sink a confirmation, the process should be specifically designed to give heretofore silent victims a secure venue to share this unquestionably relevant information. The committee could designate a specialized liaison to advise potential accusers on whether their account is likely to be worth the trouble. A bipartisan group of staffers or other neutral investigative body could do an initial screen for credibility, with a low bar to move forward.
If accusations are deemed credible, the nominee should be notified, and the committee should request a law-enforcement investigation. The nominee could either withdraw on his own terms or rebut the accusations at a closed merits hearing. At the merits hearing, the committee should designate either two senators (one from each party) or an outside advocate to make the case for disqualification. That case would include expert testimony on the effects of sexual trauma on memory and other aspects of life. The nominee would defend, with the right to counsel and standard discovery. Committee members would then decide whether a preponderance of the evidence supports disqualification. (I’d even say a tie goes to disqualification.) If a majority concludes that it does, the nominee could be given a final opportunity to withdraw on his own terms before a final committee vote to officially disqualify.
This sketch is far from perfect, and I’m confident that people with more legislative expertise than I have would offer a better proposal. Nevertheless, a process that has agreed-upon goals, that’s clear about how it will treat participants’ interests, and that’s designed to elicit all relevant information would inspire much more confidence and faith. We should be discussing how to get there.
Without process, all that’s left is power. And fear.