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National Opinion

Hutt: How Should We Have Judged Kavanaugh?

Announcing her support for the nomination of Brett Kavanaugh on the Senate floor, Susan Collins dramatically asserted her commitment to the “presumption of innocence” when evaluating the veracity of Christine Blasey Ford’s accusations. “I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward,” she steadfastly proclaimed, echoing the arguments of many Republican legislators that the preservation of a fair process for Kavanaugh superseded any risks associated with the potential to appoint a nominee who allegedly committed disturbing and abusive crimes.

But where does this need for the “presumption of innocence” in the confirmation process for a justice come from? Why must we have granted Judge Kavanaugh such a strong benefit of the doubt? This was not after all, as Collins rightfully discerned, “a trial.” Senator Collins came to this conclusion because for her all that mattered was whether Kavanaugh’s prior conduct “earned” him that seat, whether he “deserved” it. But what she recklessly neglected was how widespread deep distrust of Kavanaugh threatened the legitimacy of the Court, railing against the lessons ingrained in our Constitution.

The fundamental law omits express guidance on what to consider when confirming a justice to the Court. We are only told that the Senate shall have the power to “advise and consent.” But, we can delineate how the Law of the Land implicitly instructs us how to approach the question of what standards to employ when evaluating misconduct.

Angry politicians often shout that grounds for impeachment are “high crimes and misdemeanors” (something that’s surely inclusive of Kavanaugh’s alleged conduct), but during the heated barbs, no one ever critiques the ground rules for impeachment. Those rules commence with the claim that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” In this provision, the Constitution explicitly revokes any power the Senate might claim to adjudicate criminal guilt or innocence, expressing distrust in their competence to do so compared with the traditional legal system. Thus, Senators are liberated to apply significantly lower standards than a trial to preserve the integrity of government at all costs even if the evidence isn’t entirely corroborated. The government comes first over the officeholder!

The ground rules halt with the line: “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Don’t think the impeached official won’t get the their day to defend themselves in court! If “fairness” to the official’s rights are the tantimont concern, they will be treated as such at trial not on the Hill.  Shouldn’t the same standards apply for a criminal allegation as for a confirmation hearing? Withhold the office from he who has lost credibility with the American electorate but allow the official to prove his innocence to preserve his rights in court.

“Good behavior” has always been the apical qualification for a judge. Nowhere in the Constitution does it profess a justice gets “life tenure” on the Court, only that he shall keep the position so long as he maintains “good behavior”. Our Framers placed special emphasis on confirming that the judicial actors were of the highest integrity possible.

And of course they did! They were petrified of tyranny of the judiciary, the abuse of power by judges. According to America’s Constitution: A Biography by Professor Akhil Reed Amar, “In the 1760s and 1770s, Americans used [the] republican strongholds of [colonial juries] to assail imperial policies and shield patriot practices. In response, British authorities tried to divert as much judicial business as possible away from American juries – toward colonial vice admiralty courts for custom cases and English court for certain crimes committed by the king’s officers in America. Revolted, Americans revolted.” The right to a trial by jury is so innate in the American conscience as a relic of the deep-seated mistrust recounted by Amar. Constitutional Conservatives, why don’t we listen to the Framers here for a change?

When Senator Lisa Murkowski, the only Republican to vote against Kavanaugh’s nomination, was asked why she voted “no on cloture”, she declared, “I have been wrestling with whether or not this was about the qualifications of a good man or is this bigger than the nominee. And I believe we are dealing with issues right now that are bigger than a nominee.” Susan Collins never grasped the fundamental truth in those words, but the Constitution always has.