Believing Kavanaugh or Blasey Ford before hearing testimony is bias, not blind justice Jonathan Turley
https://www.usatoday.com/story/opinion/2018/09/19/brett-kavanaugh-christine-blasey-ford-mazie-hirano-believe-survivor-column/1358923002/
Democratic senators say they believe Brett Kavanaugh’s accuser, Dr. Christine Blasey Ford, but belief before the hearing isn’t blind justice. It’s bias.
It is a growing mantra on and off Capitol Hill. Both members and commentators have insisted that Christine Blasey Ford “has a right to be believed.” Hawaii’s Democratic Sen. Mazie Hirono not only has insisted that she and other women alleging abuse “need to be believed,” but men need to “just shut up and step up.” It is a jarring disconnect for members who insist that they confirm a nominee who will approach legal questions with a fair and open mind while dispensing with such considerations in their own treatment of his nomination. The fact is that Ford has a right to be heard and to be treated fairly. Neither she nor Kavanaugh have a right to be believed on the basis for an allegation or a denial.
Throughout the confirmation hearings, Democratic Senators pressed Kavanaugh as to whether he was a lock for business and corporate interests — favoring certain types of litigants and not giving a fair hearing to others. Sen. Sheldon Whitehouse denounced the conservatives on the Court — and by extension Kavanaugh — as changing their approach based on who was making allegations. He decried conservative jurists who spared corporate or business litigation from what they viewed as the “indignity of equal treatment.”
Kavanaugh and Ford deserve blind justice
Yet, the touchstone of legal process is neutral, consistent, and fair review. That means that no one has an advantage because who they are or what they represent or what they are alleging. Law is objective and, yes, blind.
These politicians however insist that blind justice means turning a blind eye to abuse. Various Democratic senators announced within days of Ford’s allegations that they believe her, including Minority Leader Chuck Schumer. Hillary Clinton and others have insisted that the test is whether you believe any woman alleging abuse. Clinton declared “I want to send a message to every survivor of sexual assault … You have the right to be believed, and we’re with you.”
What precisely does that mean? In the case of Ford, she is a highly credible person with a distinguished background as a college professor. However, does that alone mean that you should believe her over Kavanaugh, a person with a similarly distinguished background? Ford has only offered an allegation with minimal factual support. Indeed, she admits that she cannot recall the specific date or specific party involved in the assault. That does not mean that she lacks credibility but no reasonable judge would declare that they believe one party based solely on the initial (and contested) allegation.
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It is a curious standard to maintain in this context. What would be the response if a nominee insisted that corporate parties “have a right to be believed” or people had a right to be believed based on their race or their religion? Indeed, judges received far more detailed allegations in the form of complaints in every case but maintain their strict neutrality in judging the case until after testimony and evidence has been fully placed into the record. A statement that a judge “believes” one party would be grounds for immediate removal for a lack of impartiality.
It is certainly true that senators are not judges, but they have repeatedly acknowledged their obligation to allow for a fair hearing. A hearing on an allegation of this kind comes closest in the Senate to a judicial proceeding other than an impeachment trial. Witnesses appear in the expectation that the committee will afford both parties the basic protections of due process, including an open mind. It is not enough to say that your mind can be changed but you are starting with a belief that Ford is telling the truth and Kavanaugh is a liar.
Justice means no preferences, prejudices
This hearing shows more vividly why such impartiality is so important. This is an alleged incident that occurred 36 years ago. Recently, ranking member Sen. Diane Feinstein (D., Calif.) said that she could not recall speaking or corresponding with Ford or her lawyer just days ago.
Yet, members are rushing to the airways to assure voters that they have made up their minds before any hearing. Sen. Richard Blumenthal (D. Conn.) declared “Let me say right at the outset, I believe Dr. Ford, I believe the survivor here.” Others have insisted that they will not allow Kavanaugh to paint Ford as a “liar” by denying her allegations. Of course, Ford is labeling Kavanaugh as a liar in making the allegation. That is part of the zero-sum aspect to sexual abuse cases. Someone is usually lying, but that does not mean that you declare one to be a “survivor” and one a “liar” before any sworn testimony or evidence is put into the record.
Moreover, it is possible to believe Ford while believing that she could be mistaken on the identity of the attacker. It is possible to pass a polygraph examination with a false memory or association.
By the same token, the fact that Kavanaugh can produce former girlfriends and dozens of women who speak highly of him is of little import in judging these facts. He is in no more of a position to claim the right to be believed. It is his alleged treatment of this woman, not all other women, that is at issue. Moreover, Kavanaugh has categorically denied being at this party despite the fact that Ford cannot clearly recall the details of which party and house was involved in the alleged attack.
In 2016, Justice Anthony Kennedy (who Kavanaugh hopes to replace) wrote the majority opinion overturning a conviction based on the bias of the presiding judge. Kennedy wrote “Bias is easy to attribute to others and difficult to discern in oneself.” Members cannot demand an assurance from a nominee that he will approach all cases with an open mind when they are promising voters that their minds are already made up before any testimony is given on these allegations. That is the meaning of blind justice. There are no peaks, no prejudices, no preferences.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley
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