RUTHFULLY YOURS

As the Senate considers Dr. Christine Blasey Ford’s accusation that Judge Brett Kavanaugh sexually assaulted her 30 years ago, senators find themselves asking a basic question familiar to all lawyers: Who bears the burden of proof—the accuser or the accused?

But the greater burden is the one borne by the Senate itself, which now must come to a decision on Kavanaugh’s nomination, and do so in the manner that will best promote transparency and fact-finding in this nomination and all future nominations.

The “burden of proof” issue is the crux of the debate surrounding Dr. Ford’s accusations against Judge Kavanaugh precisely because she has produced no evidence to support her accusations against him. She has no physical evidence, though that is unsurprising given that she is alleging a three-decades-old-crime. More surprising, and more disconcerting, is the fact that the direct witnesses that she identified disclaim any knowledge of the crime she says they were present for; the fact that her therapist’s notes of her statements neither name Kavanaugh nor square with her other specific allegations; and the fact that Senator Feinstein herself did not pursue the allegations until after the regular confirmation hearings had ended and Kavanaugh was poised for a successful vote.

In sum, Dr. Ford’s accusation against Kavanaugh is unsupported save for the accusation itself, and those who say that she told them about Kavanaugh in the last handful of years, three decades after the alleged incident. And Kavanaugh, for his part, denies the accusation categorically—he denies assaulting her at any time or any place, including at the unspecified house party in an unknown house during an unknown year.

So is that enough for the senators to decide to vote for Kavanaugh, Ford’s accusation notwithstanding? Judge Kavanaugh’s supporters think so, pointing to the traditional criminal-law standard of presuming the defendant’s innocence and requiring the prosecutor to prove otherwise.

The response by some of Kavanaugh’s critics is blunt: “This is not a criminal trial; it’s a job interview.” (The line quickly immediately achieved bumper-sticker status on Twitter and in op-eds.)

That rejoinder is literally true, of course: The Senate Judiciary Committee’s hearing is not a criminal trial; the committee is not a court of law; Kavanaugh is not a criminal defendant.

But by the same token, the Senate Judiciary Committee hearing is not simply “a job interview,” either. The Senate is exercising its constitutional power to either give “advice and consent” to the president’s judicial appointment, or to withhold it.

So no, the Senate isn’t a court of law. But it isn’t a corporate HR department, either. The Senate is one of our government’s constitutional institutions, exercising the power of our sovereign government. And the senators need to think of their institution accordingly as they go about the work of either granting or denying advice and consent.

The senators must make a choice here and they have only three options: voting for Kavanaugh, voting against him, or not voting for him one way or the other.

It’s a stark choice. Faced with accusations that lack any evidentiary support and which are so vague as to be effectively unfalsifiable, senators will have to make this choice under uncertainty. Unless the facts as we know them change and Ford produces contemporaneous witnesses, or other evidence more reliable than statements from friends in the last handful of years, the senators will have to make their own credibility judgments.

The senators’ choice is made even more difficult by the fact that their decisions now will likely affect future Supreme Court nominations. If Ford’s accusations alone, without any contemporaneous witnesses or other evidence not yet produced suffice to terminate this nomination after the normal Senate Judiciary Committee and FBI processes ended, then critics of future nominations will have significant incentive to hold back accusations until after the FBI’s original investigation and the Senate Judiciary Committee’s normal process ends, too. If belated accusations without significant evidence are enough to halt this nomination, then every future Senate Judiciary Committee hearing to consider a Supreme Court nomination will occur under a cloud of uncertainty as to whether post-hearing accusations are imminent.

Thus, undecided senators face a truly daunting choice. On the one hand, their sympathy for Ford’s allegations, even in the absence of supporting evidence, might lead them to prefer that President Trump nominate someone else instead of Judge Kavanaugh. “After all,” they might reason, “if there is even just a one-tenth of one percent chance that a nominee committed a crime like that, then why not nominate someone else?”

But on the other hand, the senators also know that allowing a belated, evidence-free accusation to stop a Supreme Court nomination will immediately create incentives that undermine the Senate’s confirmation process in future nominations. Every future nominee’s critics will know which glass to break and which lever to pull, in the case of emergency.

And that, in the end, is the senators’ true burden: to choose wisely in the decision to confirm or deny Kavanaugh’s nomination, but also to make that choice in the way that best enables the Senate to carry out the Constitution’s “advice and consent” power for future nominations.

Some senators have already given their colleagues a stark indication of what the advice-and-consent process could look like when the Judiciary Committee’s straightforward rules go out the window: the utter chaos of Senator Booker and others launching a tidal wave of interruptions and objections at Chairman Grassley; senators actively or tacitly encouraging protesters in the hearing room; and, after the hearings, Senator Feinstein belatedly raising an accusation she received long ago and demanding a new FBI investigation.

It is a fascinating spectacle. For two years, Democrats have condemned the Republican-controlled Senate’s decision not to proceed on President Obama’s election-year nomination of Merrick Garland, even though the Senate’s inaction was both constitutional and with precedent. But now, in the political conflagration that erupted immediately upon Justice Kennedy’s retirement, some Democrats are prepared to dismantle the Senate Judiciary Committee’s straightforward investigation-and-hearing approach, and turn it into an open-ended cycle of investigations, hearings, and then accusations followed by more investigations and more hearings.

This is not a recipe for truth-finding.

In hindsight, perhaps Kavanaugh confirmation process so far has been best epitomized by Senator Kamala Harris’s controversial line of questioning, where she asked Kavanaugh if he had discussed the Mueller investigation with anyone employed by the Kasowitz law firm—but refused to name any of the firm’s lawyers, or specify the date or content of any such conversation, or provide any other details to which Kavanaugh could directly reply. Instead, Kavanaugh was left to guess what Harris was actually alleging, and to make categorical denials to a senator who (we later learned) had no actual evidence to support her vague claims. Harris’s tactic may have been novel this time, but it could become the “new normal” for the new Senate Judiciary Committee hearing process in which belated accusations without evidence suffice to open new rounds of hearings and investigations.

This is precisely why the criminal law’s presumption of innocence, and the placing of a burden of proof on the accuser rather than the accused, makes sense not just for criminal trials but also for Senate confirmation hearings in which the nominee is accused of misdeeds. By presuming the accused’s innocence and requiring the accuser to provide at least some evidence—even if it is only credible testimony from contemporaneous witnesses—the process preserves the incentive for the accuser, the one best positioned to produce evidence, to actually produce evidence. This approach best ensures the Senate’s ability to surface the facts necessary to give or deny its advice to a life-tenured judicial appointment.

As I noted in July, the vacancy of Justice Kennedy’s seat was always destined to be a politically fraught succession fight. Two years ago, some of Hillary Clinton’s opponents saw the presidential election as nothing less than a death struggle for constitutionalism itself, and declared it to be the “Flight 93 Election.” Today, many of Judge Kavanaugh’s opponents are acting as though they see the Supreme Court vacancy in similar terms: the Court and the Constitution are at stake—it is their “Flight 93 Nomination.”

And for senators, this truly is a moment where the future of the nomination process is at stake.They all must look seriously at Kavanaugh’s merits, and Ford’s accusation against him, and his response to that accusation. But they also must approach their decision in the way that best preserves the Senate’s fact-finding capabilities going forward.

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The author testified before the Senate Judiciary Committee in favor of Judge Kavanaugh’s nomination.