The (metaphorical) case of United States v. Kavanaugh begins Thursday. Alleged sexual assault victim Christine Blasey Ford is set to testify before the Senate Judiciary Committee, as will Judge Brett Kavanaugh. On Wednesday, Sen. Chuck Grassley, R-Iowa, announced that Rachel Miller, an Arizona special victims unit prosecutor, would conduct the examination of the witnesses before the committee.
Prior to this announcement, the New York Times on Monday ran an op-ed calling for Grassley to “man up” and ask questions of Ford himself. The author, Lara Bazelon, argues that outsourcing the responsibility for questioning witnesses makes the GOP senators “cynical, sexist and cowardly.”
Bazelon is incorrect.
To preserve the integrity of a unique circumstance while maintaining the proper role of the Judiciary Committee, outside counsel is required.
And this set of circumstances is indeed unique, as it requires special accommodation. During regular order in confirmation hearings, the prime focus of Judiciary Committee members is discovering a future jurist’s stances on their political priorities and legal issues. In Kavanaugh’s case, however, this is a public investigation into a serious claim of sexual assault and attempted rape—an allegation that, if true, is criminal and disqualifying.
To make the comparison to criminal law, in normal confirmation hearings, the committee plays the role of fact-finder—as much as a judge hears a case in a bench trial. Normally, this sort of hearing satisfies the public because the issues are legal questions and the committee members are generally lawyers. However, when the issue is a background or criminal question meriting fact-finding beyond the scope of the expertise of the committee, it’d be foolish to forego legal expertise.
Consider the alternative. Bazelon notes the bad optics of having old, Republican men interrogating a female sexual assault victim. This assertion is peculiar, but revealing. If the aim of the hearing is to find the facts, the optics are analogous and no different from a judge examining, in a non-prejudicial way, a witness in a sexual assault case before deliberating. But, see, it’s an imperfect analogy because this hearing and the optics thereof are inherently and unfortunately political.
Rather, Democrats know, and this op-ed concedes, what would actually happen absent an outside source: the Republican senators would be playing defense counsel and the Democrats would be prosecuting Kavanaugh. This means Republicans, as Kavanaugh is a Republican nominee, must discredit Ford and buttress Kavanaugh while Democrats have to rehabilitate Ford and create doubt around Kavanaugh. It would be a gross spectacle and plays politics with sexual assault victims.
Outside counsel legitimizes the inquiry, as well. When Ford’s letter became public, Sen. Dianne Feinstein, D-Calif., initially called for an FBI investigation into the alleged events. Why? Because she knows that the FBI and law enforcement are better suited to investigating crimes than the Senate Judiciary Committee. She also wanted to make political hay out of a situation she, in part, caused by sitting on the victim’s letter for months. Since the FBI has deemed the matter outside of their jurisdiction, bringing in outside counsel to question witnesses certainly seems like the best alternative if the goal of the forum is to present a hearing of the truth—devoid of political grandstanding.
The Supreme Court is a lifetime appointment with exceedingly long implications for our culture and jurisprudence. Its members need to be people of character and intellect, and where there is a blemish or wholesale character failing, the public have a right to know about it. We deserve the truth, and the ideal person to find it is someone outside the political stage.
Tyler Grant (@The_Tyler_Grant) is a Young Voices contributor and lawyer in Washington, D.C.
