As the highly anticipated hearing promising testimony from Christine Blasey Ford and Judge Brett Kavanaugh commences today, no doubt Democrats and the media will be filtering every soundbite through their biases. So here are three very important points to keep in mind:
1. The Context and the Ultimate Question
This is a Senate confirmation hearing for a Supreme Court justice, not a criminal trial. While the allegations are substantively criminal acts, no charges or even police reports have been filed. Because a Senate confirmation hearing is not a criminal trial, proving guilt of the underlying allegation is not the ultimate question. The Senate is not convening to become a jury and render a verdict on the allegations.
The constitutional duty of the Senate in this context is to provide advice and consent for a federal nominee. So, the ultimate question is this: “Is Brett Kavanaugh fit for office?”
Unfortunately, this question has become entirely political and partisan rather than a question of genuine legal merit. The Senate is now answering the fitness question according to partisan political interests rather than genuine fundamental fairness. We will likely not see the same confirmation vote numbers for any future nominee that prior federal judges enjoyed when the Senate confined their constitutional role to the constitutional question.
The public, and especially the Senate, should keep in mind that we won’t get a verdict on the merits. Nor should we. This means that the Senate must decide Kavanaugh’s fitness for office – nothing more, nothing less.
2. The Standard of Proof
Again, because a Senate confirmation hearing is not a criminal trial, and the ultimate question is whether Kavanaugh is fit for office, the Senate may constitutionally employ whatever standard of proof they wish to exercise, and it doesn’t necessarily have to be uniform for each senator. But they are bound by applying basic due process protections, which include the presumption of innocence and fundamental fairness.
Whether Kavanaugh is fit for office does not and should not depend on the political party affiliation of the president who nominated him. While he does not have a right to a Supreme Court seat, he does have certain rights as a citizen. Those constitutionally protected rights are not presumptively waived simply because he has chosen to accept a federal judicial nomination.
Thus, the standard here, if the Senate is being truly fair and affording constitutional protections, should at the very least be one of reasonableness. In considering the distinguished record of a man who has sat on the D.C. Circuit Court bench for over a decade, served in the White House as legal counsel, and has undergone six comprehensive FBI background checks for his various offices since 1993, it should strike the fair and impartial person as highly out of known character and incongruent with everything else we know to be true on record for Kavanaugh to have actually done what he is alleged to have done.
Is it possible that Brett Kavanaugh sexually assaulted Ford and other women? Sure, it’s possible. But is it reasonable to believe that he did in context? Is it reasonable to disqualify Kavanaugh based on everything we do know to be true and in the record, compared to what we know of the allegations? You and I make decisions of far less importance every day based on the criteria of reasonableness and consistency with everything else we know to be true, rather than mere possibility.
In the context of the Senate’s ultimate question and fundamental fairness, ask yourself—is it reasonable to believe that a known participant in a gang rape party ring would have sexually assaulted dozens of women over the course of several years — and this not only have gone unreported until the last possible moment in a Supreme Court nomination, but that the same man would go on to pass FBI background checks, become a distinguished judge, and eventually be nominated for the Supreme Court?
3. The Precedent
In the legal world, appellate judges do not consider one case in isolation, but consider how the facts and applied law of the one particular case will establish a precedent for future similarly situated cases. What we as a government do with the Brett Kavanaugh confirmation will establish precedent for future confirmations.
Do we provide the proper constitutional protections? Do we allow the uncorroborated testimony of one alleged victim to derail a confirmation? Do we take into consideration the eleventh-hour allegations from anyone else? Do we act on the intended purpose of the constitutional power or weaponize the process politically in the outcome?
What the Senate does here is of vastly greater import than one judicial nomination. Their actions here cut to the core of defining American law and values. Do we still believe in, and are willing to act upon, our values of liberty and justice and our Constitution that was ratified to protect our freedoms?
Democrats certainly understand that what the Senate does here is of vastly greater important than one judicial nomination. To them, it is about losing their ace play of an activist majority on the Supreme Court. To them, that activist, outcome-driven majority is to be valued more than the very fundamental constitutional protections that define our freedom and liberty.
What everyone should pay the closest attention to on Thursday and in the confirmation vote is what the two parties value most. In November, everyone should consider what we value. If we still value our country’s amazing experiment and leadership in protecting and preserving fundamental freedom and rights, we must tell the Senate and the nation that with our vote.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
