Years later, Hill said that testifying during Clarence Thomas’s Supreme Court confirmation hearing was “worse than being put on trial, because in a trial you’ve got legal protections.”
.. But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee — at least for Ford.
.. At Thomas’s confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. “And Professor Hill would be the one on trial,” she recalled recently.
.. Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.
.. At a criminal trial, juries are drawn from the general population and winnowed through in an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.
It’s not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however — as several Republican senators have already done — would constitute grounds to dismiss a prospective juror.
And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify.
.. The rules of evidence aren’t enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues... “For Ford, I don’t know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn’t be able to do that in a court of law,”.. These protections, crafted for sex crime victims, limit admissible evidence about a victim’s past sexual behavior.
.. More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic.
.. For Ford and Kavanaugh both, Aidala said, “the protection they have at a trial is that the lawyers aren’t playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign... senators have different motivations and are playing to a different audience... Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.
“They all make speeches and then say, ‘What do you think about that?’ ” he said. “They don’t want to ask questions, and their minds are already made up. It’s very ineffectual when you have a real witness.”
.. The Judiciary Committee’s role here is not to determine guilt or innocence but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.
.. If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, “and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt,” he said.
.. As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.
Still, Black said that he would probably call Kavanaugh to the stand.
“He makes a good witness. He’s smart, he’s presentable, he’s articulate, and he’ll categorically deny it, so I don’t see any downside,” Black said.
.. whether Judge wished to testify at a criminal trial would be irrelevant.
.. Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution’s case.
.. Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school’s yearbook: “Certain women should be struck regularly, like gongs.”
.. He has described himself as having had a blackout drinking problem, and his 1997 memoir, “Wasted,” references high school “masturbation class,” “lusted after girls” at other Catholic schools and a “Bart O’Kavanaugh,” who passed out drunk and threw up in a car.
.. “I think Ford may well be telling the truth, but when you’re putting forward a proposition — in a criminal court, the Senate or an administrative hearing — there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”
How America’s Supreme Court became so politicised
citing Scalia’s belief that “in the eyes of government, we are just one race here. It is American.”
.. Another worry about the new court is that it may be too deferential to executive power. Mr Kavanaugh, who spent years working for the independent counsel’s team that investigated Bill Clinton in the mid 1990s, later decided such investigations impinged unreasonably on a president’s time and attention. During a panel discussion in 1998 he indicated that the law protects a sitting president from indictment. In a 2009 law-review article, he proposed that Congress pass a law protecting presidents from criminal investigations and civil suits while they were in office.
.. Eric Segall of Georgia State University, the author of a forthcoming book on originalism, worry that originalist language is often used by justices to uphold positions quite at odds with the philosophy’s seemingly hands-off tenets. “Justices use the rhetoric of originalism to mask political judgment,” Mr Segall says. Past proponents of originalism argued that courts should strike down laws only in the case of clear textual error. Today, argues Mr Segall, proponents of originalism want to “shrink the federal government and deregulate the economy, but there is no reasonable originalist argument for that kind of strong judicial interference with our political system.”
.. Mr Roberts who has four justices to his left and four to his right. Though he is without doubt a man of the right, he also evinces caution and a sense of constitutional propriety. He voted twice with the court’s liberal bloc to uphold Mr Obama’s Affordable Care Act, in part, perhaps, because he felt that the court should not throw out a major piece of legislation for which the president had a clear mandate.
.. Two of the court’s liberals are in their eighties; if one dies, or is forced by ill health to retire, before the next election, and Mr Trump were to fill the void, the median position might well move rightward to Mr Gorsuch, hardening the court’s ideological tenor.
.. Brian Fallon, chief spokesman for Hillary Clinton’s presidential campaign in 2016, recently started Demand Justice, a court-focused pressure group. He wants his party to be as ruthless and court-focused as the Republicans have been. Democrats, he says, need to “get over the idea that the courts are anything other than a place where a power struggle is taking place.” If another seat does come up soon, and if the Democrats retake the Senate in this year’s elections, they will probably stonewall Mr Trump’s nominee, just as Mr McConnell did Mr Obama’s.
.. With ample justification, Democrats want revenge for the theft of Mr Garland’s seat, and how it paved the way for Mr Trump’s ascent to the White House. Faced with a conservative court that could frustrate their ambitions for decades, some have begun whispering about court packing—adding justices to the court should they retake Congress and the White House. No doubt that will outrage Republicans, and lead them to do the same the next time power swings back. Both sides will prize ideological purity over competence and independence of mind.
Down this path lies the dark day when another part of the government takes the decisive, perhaps irretrievable, step of ignoring a Supreme Court ruling. And at that point the constitution’s checks and balances come tumbling down.