the questions raised about Judge Kavanaugh in his first hearing will be submerged by the onrushing tide of scandal, as they were for Justice Thomas.
.. I do think it’s unfortunate that the cynicism and racial politics that infused the nomination of the underqualified 43-year-old Judge Thomas to a lifetime position in the seat once held by Thurgood Marshall has been erased from public memory.
.. It matters that the man President Bush called “the best man for the job on the merits” was unwilling or unable under the senators’ questioning to deviate an inch from his prepared talking points; that although he was a sitting federal appeals court judge (albeit for only 18 months) his knowledge of recent Supreme Court decisions was shaky at best; or that he made the implausible claim that he had never expressed a view, even in conversation, about Roe v. Wade, a precedent that he then voted, in dissent, to repudiate when the opportunity arose during his first year on the Supreme Court bench.
.. who would turn the constitutional clock back to the 18th century if he ever found four colleagues to agree with him, distanced himself during his confirmation hearing from the extreme conservative views he had spent years espousing in speeches. Those were, he claimed, nothing more than the musings of a “part-time political theorist.” Pressed to explain his position that there was a “natural law” higher than the Constitution, he uttered perhaps the most candid line of the entire proceeding: “I certainly never thought I’d be having this discussion.”
.. What were those earlier vulnerabilities? His work for the George W. Bush White House, many details of which have never been fully disclosed. His willingness last year, as a judge, to delay an undocumented teenager’s access to an abortion to which she was legally entitled, along with the not inconsiderable prospect that he would provide the long-awaited fifth vote to overturn Roe v. Wade. More fundamentally, there is the weighty argument that a president who may not have been legitimately elected, and who had already filled a Supreme Court seat that everyone knows was President Barack Obama’s to fill, had not earned the right to project onto the court a minority constitutional vision and lock it in place, probably for decades.
Kavanaugh’s Senate hearing isn’t a trial. The standard isn’t ‘reasonable doubt.’
Kavanaugh’s public hearings, then, and any inquiry now into the accusations against him, are less like a trial and more like a high-stakes job interview — and this job comes with life tenure. The main point of the hearings is to determine the nominee’s fitness for the post. Senators evaluate judicial qualifications, record, demeanor and philosophy. Modern judicial nominees undergo incredibly thorough vetting in preparation because they know that senators may also explore every aspect of their past. Allegations of sexual misconduct fall well within the scope of relevant considerations. Because guilt or innocence isn’t the issue, but instead fitness for the Supreme Court, the burden of proof isn’t, and shouldn’t be, on Ford, the accuser; it remains on Kavanaugh.
.. it doesn’t mean Kavanaugh must be irrefutably proved to have assaulted her, either. “If there is a doubt,” the late senator Robert Byrd (D-W.Va.) said when he voted against Thomas’s confirmation, “I say resolve it in the interests of our country, its future. Let’s not have a cloud of doubt for someone who will be on the court for many years.”
How Strong Does the Evidence Against Kavanaugh Need to Be?
Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him.
.. It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt... The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee... Nominations have failed — that is, been withdrawn or voted down — for various reasons. Sometimes it’s because a majority of the Senate rejects a nominee’s vision of the Constitution and the role of the court. That was the case with Judge Robert Bork, a Reagan nominee whose skepticism about the Constitution’s protection of privacy and liberty convinced a majority of senators that he was simply too conservative and too far out of the mainstream to be confirmed.Other nominations have been unsuccessful because of private conduct. Another Reagan nominee, Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana use that the F.B.I. had failed to unearth.
And the Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after evidence emerged that as a sitting member of the court, Justice Fortas had also been serving as a de facto adviser to President Johnson, and after questions were raised about the propriety of outside payments he had received while on the court.
.. This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.
.. In this way, the accusations against Judge Kavanaugh are directly connected to his ability to perform the job.. In an era of meager faith in public institutions (Congress’s approval ratings hover around 17 percent), the relative trust in the court is a striking and important fact. But even more than a heartening fact, it’s critical to the court’s functioning: The public’s perception of the court as legitimate is in many ways the source of its power.Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.
There’s So Much You Don’t Know About Brett Kavanaugh
One proposal would limit justices to 18-year terms, which would create an opening on the court every two years, and reduce some of the political gamesmanship that surrounds open seats today. But any change to the justices’ tenure would require a constitutional amendment, and so is a longer debate for another day.
.. During the 2016 campaign, Mr. Trump publicized a list of possible Supreme Court nominees preapproved by the Federalist Society and the Heritage Foundation, another conservative group. It was scrubbed of any squishes along the lines of David Souter, Anthony Kennedy or even Chief Justice Roberts, all of whom have been deemed insufficiently committed to the cause for failing to vote in lock step with the radical right’s agenda. (Judge Kavanaugh was left off the original list but was added later.)The Federalist Society claims to value the so-called strict construction of the Constitution, but this supposedly neutral mode of constitutional interpretation lines up suspiciously well with Republican policy preferences — say, gutting laws that protect voting rights, or opening the floodgates to unlimited political spending, or undermining women’s reproductive freedom, or destroying public-sector labor unions’ ability to stand up for the interests of workers.
.. Senate Democrats need to use the confirmation process to explain to Americans how their Constitution is about to be hijacked by a small group of conservative radicals well funded by ideological and corporate interests
.. We’re witnessing right now a global movement against the idea of liberal democracy and, in places like Hungary and Poland, its grounding in an independent judiciary. Mr. Trump and Senate Republicans appear happy to ride this wave to unlimited power. They will almost certainly win this latest battle, but it’s a victory that will come at great cost to the nation, and to the court’s remaining legitimacy.
.. Americans who care about the court’s future and its role in the American system of government need to turn to the political process to restore the protections the new majority will take away, and to create an environment where radical judges can’t be nominated or confirmed.