Legal Lessons From the Kavanaugh Confirmation

October 14, 2018 Updated: October 15, 2018

News Analysis

While the dust hasn’t yet settled, Justice Brett Kavanaugh is on the Supreme Court, and it is time to draw some lessons about the law and about the American legal system from the national soap opera that the United States just experienced.

The charge that almost derailed the 53-year-old Kavanaugh’s confirmation related to his high school years. Christine Blasey Ford claimed that he had sexually assaulted her when he was 17 and she was 15.

According to Ford, Kavanaugh pinned her to the bed, groped her, tried to pull off her clothes, and covered her mouth with his hand when she tried to scream. She said that she thought he was trying to rape her. Kavanaugh vehemently denied the charges, and the rest of America watched it all unfold.

The hearings were particularly messy because the procedure wasn’t clear. Law is about process and procedure.

In addition to laws that lay out the elements of crimes or civil causes of action, rules of evidence, civil procedure, and criminal procedure are designed to make certain that all parties are treated fairly.

There is a starting assumption (presumption of innocence), a burden of proof for the plaintiff in a civil case (preponderance of the evidence), or the prosecution in a criminal case (beyond a reasonable doubt), and standards of review for appeals. Unfortunately, none of these rules directly applies to judicial confirmations.

A Disqualifying Event?

Under the U.S. Constitution, the Senate has the power of “advice and consent” for judicial nominations. What does that mean? What right does the nominee have? Should Kavanaugh have been presumed innocent until proven guilty? If he had to be proven guilty, would it be by the civil standard or the criminal standard? With no such rules in place, it’s no wonder that there was so much confusion, drama, and unfairness.

The first question that should have been addressed was, “whether, if true, the high school event was disqualifying?”

Perhaps the answer is so obviously “yes” that no one felt it needed to be discussed, and in the heat of the debate, perhaps few would have been willing to argue that such a charge wasn’t disqualifying. It seems, however, that it would have at least been worth mentioning. Now that the hearing is over, it’s an issue that calls out to be explored.

Ford testified that she thought Kavanaugh was going to rape her, and many have argued that he committed the crime of attempted rape. That would seem to be a disqualifying charge, but had she gone to a prosecutor the very next day, and had the prosecutor believed her and decided to press the case, an attempted rape conviction would be very unlikely.

Attempt (of any crime) is an inchoate crime. In other words, the crime is something that hasn’t yet taken place. It’s very hard to convict a defendant of attempt unless he or she was very close to completion of the crime when it was stopped.

In one case, the court congratulated the good police work of stopping some apparent bank robbers. The men were carrying guns up to the bank but hadn’t yet entered it. Unfortunately, the court explained, the suspects had been stopped before they had committed attempt. The attempt charge was dismissed because there was still a chance they would call it off.

In the Kavanaugh/Ford matter, it seems reasonable that a 15-year-old girl would fear that she was being raped. It shouldn’t have happened, but it seems that the event was stopped well before even a zealous prosecutor could prove attempted rape. There were too many possible stopping points along the way. In all likelihood, the most serious crime for which Ford’s assailant would have been convicted is simple assault, and it’s unlikely that there would have been any incarceration associated with it.

Should a simple assault conviction be held against a 17-year-old boy 36 years later? Presumably, he would have been tried as a juvenile. Cases like that are often conducted “under seal.” That is usually for the victim’s benefit, but it means that the public’s interest is outweighed by other considerations.

Even if this case weren’t kept confidential, juvenile crimes are routinely expunged. We do that because we don’t think a juvenile indiscretion, even a serious one, should haunt a person throughout his or her life.

Had Kavanaugh been convicted, his subsequent behavior would be very relevant in assessing whether he would obtain an expungement. Often such questions turn on whether the party has gotten a job or passed the high school equivalency exam.

By any normal usual standard, Kavanaugh’s subsequent record would qualify for expungement of a simple assault conviction. This society believes in redemption and second chances. Thus, we rarely hold teenage indiscretions (even convictions) against people after a decade or more of good behavior.

An additional point to consider is that if Ford is correct, the assailant was a 17-year-old boy who was drunk. Adults aren’t forgiven for their transgressions just because they were intoxicated, but juveniles are in a different category.

Based on Ford’s testimony, both she and the assailant obtained beer while in high school. That reflects a failure on the part of adults who were supposed to keep alcohol away from children. For all we know, this was the first time that the 17-year old boy drank beer. While not releasing him from all culpability, it would be relevant in deciding on punishment and on expungement.

Cross-Examination

A different lesson from these hearings relates to the importance of cross-examination. The Bill of Rights promises criminal defendants the right to confront witnesses against them. That means they have the right to test the validity of accusations made by their accusers. That is an indispensable right.

Cross-examination permits a party to test the witness’s perception, memory, bias, character, and more. When Ford’s letter first came out, many protesters adopted the “we believe her” line before she had testified or been cross-examined. Frankly, that is an unreasonable position.

It’s probably true that the testimony of victims too often has been discounted. That probably flows from the American dedication to Blackstone’s formulation: “It is better that 10 guilty persons escape than that one innocent suffer.”

We may or may not want to re-think that proposition, but if a corrective is necessary, it shouldn’t involve ignoring the testimony of the accused. Both parties must be heard and be cross-examined. Only then, can a just society reach a reasoned decision.

This wasn’t a happy event in American history. The process wasn’t fair to the Kavanaughs or to Ford. She apparently wanted to send a private letter but someone leaked it. It also seems that her representatives failed to tell her about the committee’s offer to come to her. They certainly seem not to have prepared her well for cross-examination.

One final lesson about law from this affair: There is value in finality. At some point, the case is over, the appeal is done, and people learn to live with the result. If changes need to be made, the voting booth and the legislative process are the best available avenues.

Regardless of one’s perception of the result of the Kavanaugh hearing, there is a need to review and perhaps revise the procedures and processes for confirmation hearings in the future.

Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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