A Judicial Confirmation Hearing Is Not a Trial By Andrew C. McCarthy
Kavanaugh’s hearing has become a farce.
I’ve never thought the big Ford–Kavanaugh hearing scheduled for Thursday would actually happen. Maybe I’ll be proved wrong, but I’ve never believed Christine Blasey Ford wants to testify. This hearing is not going to settle the issue of what, if anything, happened 36 years ago — which, as I’ve noted, is why there is no point in having the hearing.
Senator Chuck Grassley, the Judiciary Committee chairman, should just invite affidavits from the witnesses and call it a day. Democrats, in any event, would rather have the specter of Ford’s testimony than the real thing, given that the latter will highlight: (a) her inability to recall and relate rudimentary details, (b) the fact that she did not utter a word about the alleged sexual assault for 30 years, (c) the discrepancies between her current version of events and the notes of what she told her therapist, and (d) the fact that the other witnesses she has identified do not corroborate her story. Moreover, now that Republicans have reportedly retained an experienced female litigator to conduct the questioning, there is no longer the prospect of video clips featuring Ford being grilled by old white guys — grist for what Democrats hoped would be their “War on Women 2.0” campaign ads.
Ford’s legal team continues to add new demands. The latest is a push to have two “trauma experts” and Ford’s polygrapher testify. The purpose of these outlandish proposals is likely to prompt denials that would allow Ford to bow out of the hearing, blaming purported GOP intransigence and insensitivity.
This underscores that the point of the hearing is being lost.
A few days ago, when Democrats were demanding that the FBI be dispatched to investigate Ford’s nearly four-decade-old allegation, I pointed out:
Even though the FBI had jurisdiction to conduct a background investigation of Kavanaugh, such investigations are not occasions to trigger full-blown criminal investigations of [alleged state] crimes the Justice Department has no jurisdiction to prosecute, but rather result in a flagging of allegations for the Senate’s consideration (which has been done here).
The FBI inquiry into Judge Kavanaugh’s background is not a criminal investigation. The hearings attendant to the nomination are not intended to be a trial. Thursday’s hearing, supplementing the 31 hours of testimony Judge Kavanaugh has already provided, is not even, as he suggests, a forum for “clearing my name” — though he may understandably hope for that, just as one supposes that Ford hopes for some measure of vindication.
That is simply not the point.
The proceedings are about Kavanaugh’s suitability to sit as an associate justice of the Supreme Court. Period. The objective is to give the Senate — first the Judiciary Committee and then the full chamber — enough information to make a discriminating appraisal of Kavanaugh’s legal erudition and character. On that score, the Senate has more information about this nominee — including, most significantly, the 300 appellate opinions he has authored on the eminent D.C. Circuit Court of Appeals — than any nominee in the history of the United States.
The Senate is not being asked to solve alleged crimes. Its job is not to psychoanalyze witnesses. Lawmakers, instead, are exercising their constitutional duty to provide advice to the president on a nomination and, if appropriate, to consent to a nominee’s accession to office. That’s it.
Since Democrats are hell-bent on turning the ongoing Kangaroo Court into a pseudo-trial, it is worth noting how ridiculous that notion is. To begin with, a trial requires jurors who have been vetted for their objectivity. What we have here, instead, is a political theater in which every Democrat is immovably predisposed to vote against the nominee — regardless of whether it is Kavanaugh or anyone else President Trump appoints to fill any Supreme Court vacancy. All the banter about “presumption of innocence” is silly. The proceeding is not about guilt or innocence; it is about qualification, and Democrats are presuming Kavanaugh’s lack of qualification, no matter how overwhelming his résumé and how manifest his command of American jurisprudence.
But let’s pretend we were in a trial setting. If that were so, the case would be thrown out of court.
First, Thursday’s uncertain spectacle is scheduled only because the confirmation process has been abused. Democrats willfully sat on Ford’s allegations and raised them in an untimely manner after the hearing. New meager allegations have come out of the woodwork in the same fashion. In a normal legal proceeding, these claims would be deemed waived by the failure to raise them in a timely fashion and submit them to the regular hearing process. If Grassley agreed to have the record supplemented by written submissions from witnesses about these allegations, that would not only have been sufficient but more than Democrats were entitled to under the circumstances.
More to the point, no court would entertain these allegations. The reason the Constitution requires a speedy trial in criminal cases, and the reason the law imposes statutes of limitations (in federal law, it is usually five years), is that unreasonable delay unfairly prejudices an accused’s right to present a defense. After five years, to say nothing of 36 years, physical evidence is no longer available, witnesses are often unavailable, and even if witnesses can be produced, their memories have faded and become unreliable. There is no way to conduct a proceeding that satisfies fundamental fairness.
Thus, the absurd irony: Democrats want to ignore that the proceeding here is merely an exploration of Kavanaugh’s fitness to be a judge (which has been established beyond cavil); but while they want to turn the proceeding into a criminal trial, the case would be thrown out if we were operating under trial standards. The allegations are hopelessly stale, and the Judiciary Committee would be disqualified as fact-finder because its members have already made up their minds about the outcome.
In the first 150 years of constitutional governance, nominees did not appear at confirmation hearings. After all, their public records were more than sufficient for lawmakers to appraise their suitability, and they could not ethically answer the questions of real interest — how they would decide various kinds of cases. It was better back then. It was particularly better than what hearings became in the 1980s, when television and “borking” made them hyper-politicized — theater that was as much about celebrity senators as judicial nominees.
The Kavanaugh hearings have descended into farce. They are unfair by constitutional standards and unedifying by commonsense standards. I continue to doubt there will be a hearing on Thursday. I have no doubt that there should not be a hearing. There should be a vote.
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