Four legal takeaways from a sad day for the Supreme Court

Thursday was an extremely difficult day for America.

It was difficult to watch a terrified Christine Blasey Ford recount the sexual assault she allegedly experienced as a 15-year-old girl. It was difficult to watch Judge Brett Kavanaugh’s emotional, sometimes vitriolic defense of his reputation. Perhaps most of all, it was difficult to watch the Senate in its utter brokenness, unable to dignify a process that should be as close to sacred as anything under our Constitution.

{mosads}Understandably, people have many questions about the process, and whether it was fair to Republicans and to Democrats, to Kavanaugh and to Ford.

This is a salient question. As Kavanaugh himself indicated in his testimony, this is a high-stakes job interview. But unlike other powerful jobs in the federal government — such as the job of president, or senator, or secretary of Defense — this one is for life. Supreme Court justices move on in one of three ways: they resign, they die, or they’re impeached, which is very tricky business. So the confirmation of a Supreme Court justice is for keeps.

Here are a few legal takeaways about the process so far:

1. As Kavanaugh explained, the confirmation process effectively implements the “advice and consent” clause of Article II of the Constitution. The president picks federal judges, and the Senate provides advice and either gives — or withholds — its consent to that choice. There is no definition of these two terms in the Constitution.

Presumably, the Constitution contemplates that the process will allow senators to gather relevant information to enable them to draw informed opinions about whether a candidate is qualified — and also whether the appointment will serve the broader interests of the institution of the Supreme Court.

Although the Senate Judiciary Committee isn’t mentioned in the Constitution, it makes the rules on how the process unfolds. In this instance, those rules have favored the Republicans, who are in the majority. Because only a simple majority is required for confirmation these days, Republicans don’t really need Democrats’ “advice and consent.” As a result, neither Democrats nor their constituents have meaningful power to influence the outcome.

2. Although “advice and consent” is undefined, the American judicial system has figured out ways for ensuring that a fact-finding process is thorough and fair. So, absent guidance from the Constitution itself, it’s reasonable to look to that process for guidance. 

Neither Kavanaugh nor Ford are criminal or even civil defendants here; this is not a judicial trial, in which maximally fair procedures would apply. That would mean the discovery and sharing of all relevant information — witnesses, documents, electronic data, etc. — over a period of weeks or months, and then presenting that information to a neutral fact-finder, usually through trained lawyers, and pursuant to evidentiary rules that are designed to make sure that the information is reliable.

In administrative hearings — which occur before federal and state agencies — looser procedural rules apply, but basic rules of the game exist. The Constitution calls this range of procedures “due process,” a concept that doesn’t technically apply to a job interview for the Supreme Court, but which is pretty important nonetheless.

3. We heard a lot Thursday from Judge Kavanaugh about four witnesses who allegedly refute Ford’s account. We also heard about the alleged lack of corroborating evidence supporting her account. And we heard Ford repeatedly indicate that she could be more helpful with her testimony if she could find out when the other person she said was in the room during the incident, Mark Judge, worked his summer job, as it would enable her to recall the date of her attack with more precision.

Most prominently, since this story broke, we’ve heard a lot about how this is a “he said, she said” thing — as if there were no way to break the tie (other than to err on the side of caution, which would mean moving onto another nominee).

A “he said, she said” tie can, in effect, be broken.

One way is to identify corroborating evidence from either person, i.e., information that makes it more likely that one account is more credible than the other. There are evidentiary rules that help this effort in court: a prior statement made when the witness was less likely to lie, for example; or the sworn testimony of another witness who will confirm one account over the other; or a document memorializing bits of information that are consistent with one version of events or inconsistent with another. It’s therefore unsurprising that Democrats are interested in bringing information of this ilk before the Judiciary Committee.

Presumably, even if Mark Judge doesn’t recall the specific incident, he could confirm Kavanaugh’s account of his habits during high school. Likewise, during his testimony, Kavanagh repeatedly referred to three other witnesses as willing to offer testimony consistent with his own.

In short, common sense (and Thursday’s hearing) tells us that engaging in a live conversation with a person is a very different experience — and much more helpful in terms of gathering helpful information — than reading a piece of paper containing a statement written by lawyers.

4. It is important to keep the big picture in mind here. One benefit of a hearing that allows both sides to present corroborating information is that the process is more likely to produce an outcome that garners “buy-in” from Americans of every political affiliation. If the rules of the game are fair, and the umpire calls balls and strikes according to those rules, then the losing team’s fans are more inclined to accept their loss in stride.

This week’s painful spectacle is a lose-lose for everyone: for Kavanaugh, whose legitimacy on the court will be forever questioned if people feel the process was stacked against them, and for Ford, who has been accused of lying and doesn’t feel safe in her own home right now. The American people also lose: personal rights — what keeps individuals free from arbitrary government intrusion into life, liberty and property — are at stake every time the Supreme Court begins a new term. And the Supreme Court itself has been permanently damaged as an institution, and, yet, must begin again its vital work just days from now, on Oct. 1.

Kimberly Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, “How to Read the Constitution, and Why,” will be published by HarperCollins in the Spring of 2019.