With the possibility that Judge Brett Kavanaugh’s accuser will appear before the Judiciary Committee next week, Senate Republicans need to get one thing clear: This…
With the possibility that Judge Brett Kavanaugh’s accuser will appear before the Judiciary Committee next week, Senate Republicans need to get one thing clear: This is bigger than one nominee.
That’s because what the Senate does will define the gauntlet that nominees have to run. An absence of fairness could scare away future nominees — and their families.
All this is bigger than one nominee for another reason, too. That’s because it involves an attempt by the Democrats to overturn centuries of legal principle that is encompassed in our Constitution.
If the left prevails, it could dilute our whole judiciary’s commitment to fairness.
This came into focus with Hillary Clinton’s shocking effort this week to put her thumb on the scale of these hearings. She did this in an interview with Rachel Maddow.
Given the allegation by Christine Blasey Ford that Kavanaugh tried to rape her at a party when they were teenagers, Clinton called for denying Kavanaugh the benefit of the doubt.
Instead, Clinton said, the benefit of the doubt should go to the “court and country.” She attributed this theory to Sen. Robert Byrd of West Virginia.
Byrd, now gone but once a lion of the Senate, offered the theory in 1991 during the confirmation of Justice Clarence Thomas, who was accused by a former aide, Anita Hill, of sexual harassment.
When Byrd was asked what he was going to do, Clinton told Maddow, “he said in a situation like this, we should give the benefit of the doubt to the court and the country.”
To call that a cockamamie construction would understate its danger. Some headline writers took the former first lady to be suggesting that the benefit of the doubt should even go to the accuser.
Yet that flies in the face of centuries of jurisprudence. The long record is that the burden of proof rests with the accuser and benefit of the doubt always rests with the accused.
This is about whether a person is presumed innocent until proven guilty. If we reverse — or even dilute — that principle, it could cast us into the dystopian realms of Kafka and Orwell.
It would upend our Constitution’s guarantee of due process of law. For that, our Supreme Court has found, is bound up with the idea of proof beyond a reasonable doubt.
The court articulated that in 1881. It held that evidence “upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt.”
In 1970, the supremes again marked the point, in a case involving a juvenile. There, too, it said, “proof beyond a reasonable doubt” was required for “every fact necessary to constitute the crime charged.”
Wait, Hillary Clinton might exclaim, the Judiciary Committee isn’t a court of law. And Judge Kavanaugh isn’t on trial for his life, liberty or property. He’s just up for confirmation.
Maybe Clinton failed to read the full record of the Clarence Thomas-Anita Hill hearing. For it makes clear that reasonable doubt was key to the proceeding.
That was pointed out by the Judiciary Committee’s then-chairman, Joe Biden. He opened the Hill hearing by asserting precisely that Judge Thomas “must” be given “the benefit of the doubt.”
In other words, the idea that it was “court and country” that were owed the benefit of the doubt was unacceptable. A young GOP senator, Charles Grassley, spoke up to underline Biden’s point.
Grassley is now chairman of the Judiciary Committee. When the Kavanaugh hearing resumes, there may be senators who have made up their minds with certainty. Other senators, though, and millions of Americans will nurse doubts.
So benefit of the doubt is important. Do away with it and what’s next? Already some are suggesting that merely the possibility that Kavanaugh might have raped Blasey Ford is enough to disqualify him.
That would alter the stakes for future Supreme Court nominations — and the lower courts. Confirmation could become a kabuki theater pending an 11th-hour accusation.
Call it conviction by possibility. And here’s the biggest danger: If we subject our judges to that standard, to what standard will they subject the rest of us?
Lipsky@nysun.com
