With the most curious headline possible, the New York Times argues “Hit Pause on Brett Kavanaugh. The integrity of the Supreme Court is at stake.” Are they disavowing Linda Greenhouse’s last two years of shrieking how the Supreme Court was comprised of partisan lackeys and the progressive wing, now suggesting that perhaps there remains some integrity to salvage? Of course not.
With a third woman stepping forward with accusations that the Supreme Court nominee Brett Kavanaugh committed sexual assault as a young man, this destructive stampede of a confirmation, driven so far by partisan calculation, needs to yield at last to common sense: Let qualified investigators — the F.B.I. — do their job.
Yes, the FBI, that investigative marvel that somehow missed serial gang rapes that everyone know about. Sure, it might delay the hearings, only briefly in David Lat’s inexperienced view, or perhaps until Senator Kamala Harris is sworn in, but isn’t it worth it to know the truth? Our wild swings of faith in the FBI’s magical powers remain a constant reminder that we latch onto anything we can when we’re drowning, even when it was a lead weight around our neck the day before.
There will be no FBI investigation, as the Times well knows. But it’s call for further investigation, and recognition that this confirmation hearing is so deeply mired in political gamesmanship, comes from a more basic understanding of the sinkhole in which the Senate, and America, finds itself. The feces has been flung and it’s splattered everywhere. What’s the Senate to do?
This is dereliction of the Senate’s duty — and it is now up to senators who know better, who prize the dignity and duty of their chamber, to demonstrate that they are indeed something more than partisan tools.
It’s nice that the Times mirrors my admonition, that it’s time for adults to take charge, but the FBI performed background checks no less than six times and came up with no taint at all. And the Times knows that they can’t call for a criminal investigation, as that’s beyond the FBI’s purview, and more to the point, none of the accusers have made a criminal complaint against Kavanaugh. They could have. They should have. They never did. Even though it may be understandable why they didn’t, the fact remains that they didn’t. Excuses do not prove guilt.
There is a possibility that in a few hours, a hearing will be reopened and a witness will testify. And some of us will watch. It’s possible that the hearing will occur and that there will be a Perry Mason moment where a witness breaks down, admits they’re failing and the issue, at least one of the issues anyway, will be resolved. But this is highly unlikely.
Senate hearings are not trials. There is little need to explain this to trial lawyers. None of the rules or processes apply, and there is nothing about them designed to resolve disputed facts. The basic concepts apply, much as they apply to our way of considering any disputed allegations, any accusations, but not as rules to be enforced. There is no “presumption of innocence,” though the reasons for the presumption remain as valid as ever. There are no rules of evidence, no judge to sustain an objective to a compound question (which is a kind way of saying a 20-minute speech alleging wild claims and devoid of any question at all) or calls for speculation and hearsay.
It’s not a trial, which means that the hearing of accusations, and to the extent possible, the scrutiny that will be applied, is all just a goofy game. Whether it’s as goofy as the facile trust in the FBI to do its voodoo this time, even if it failed the last six, is a personal problem, but it’s all goofy. To believe otherwise is to show your bias. There’s no resolution here. A Senate hearing was never constructed to be a trial. It won’t be a trial. It shouldn’t be a trial.
The problem faced is that there are accusations of criminal conduct, increasing in numbers in proportion to its decrease in credibility, that are now “out there.” My position after Christine Blasey Ford came forward was that the Senate Judiciary Committee had no choice but to reopen the hearing, to deal with the allegations. Judge Kopf disagreed, and took me to task.
Fifth, and most importantly, a precedent needs to be set. That is: one cannot come out of the woodwork to attack a judicial nominee once the confirmation hearings have been concluded. The unfairness of an open-ended process is evident. Moreover, political mischief is invited if deadlines aren’t deadlines.
Don’t hold a hearing or do an investigation. No good will come of it.
Judge Kopf was right. I was wrong. We are now stuck in a hole from which there is no escape. Whether it’s one accusation or a dozen (think the highly-respect legal theorist, Nancy Grace’s, favorite argument, “where there’s smoke, there’s fire.”), it’s too late. And there are no rules by which this game is to be played that will allow us to reach a national consensus or a national catharsis. This isn’t about being a slave to process, but about the consequences of the absence of process.
The hearing has been analogized to a “job interview,” mostly for the sake of distinguishing it from a criminal trial, which it most assuredly is not. The analogy is flawed, however. While Brett Kavanaugh has the burden of persuading the Senate that he deserves to be confirmed, decades old accusations don’t mysteriously appear when one seeks the position of assistant manager at Dairy Queen. The tacit implication is rather than risk a rapist, even if unproven, on the Court, take a pass and move on to another nominee. To some, this seems like prudence. To others, this is a precedent that undermines the institution.
When faced with a morass of problems for which there is no viable solution, basic process provides a rock in the storm, a foundation created over centuries upon which we can address even the wildest of situations. The resolution of criminal accusations are properly resolved by timely criminal trials, not by political shows played out for public consumption that were never intended, never designed, to serve this function.
Either the accusations (one, some or all) are true or they’re not. Our society has determined that the forum to decide such accusations is a criminal trial. That the accusers have chosen not to go that route isn’t Kavanaugh’s fault, but theirs, valid excuses notwithstanding. Having failed to bring their accusations to the only possible forum where they could be resolved does not mean they get a belated second shot in a forum so utterly ill-suited to the resolution as a Senate hearing. Not even if you really, really hate Brett Kavanaugh, or really, really believe the “victims” because you just do.
There will be show put on today and no one’s mind will be changed and no fact will be decided. Kavanaugh will be tainted by these accusations no matter what. No one will be saved. This is the worst possible outcome for everyone.