One Way to Fix the Nominating Process

Watching the Kavanaugh Judicial Committee hearing has been an unpleasant task. I have not been able to watch it all, nor have I been able to read all the details from each day. However, I think we have all learned a lot about the current condition of the United States through this process, and it is worse than we all probably imagined. We are a nation of accusers and accused and it is an embarrassment. Some people switch back and forth between the two groups from time to time, but for the most part white, Christian males are by default, in the accused group. Brett Kavanaugh is a white Christian male, and for some that is enough evidence to convict him.

As part of his nomination to the Supreme Court of the United States (SCOTUS), Brett Kavanaugh was vetted by the executive branch and the Department of Justice. This has taken place at least twice within the past twelve years due to his appointment to the federal judiciary, and due to his work in the federal government over his career, the FBI has now completed six background checks on him. After he was nominated for SCOTUS, thousands of people did their own background checks on him by drawing on their memories of interactions with him over the past five decades. At the end of this process, three people were reported to have made increasingly outlandish allegations against him, from groping to gang rape.

The demarcation line is drawn directly down party lines, from accuser and accuser’s counsel, to the elected officials, with Democrats alleging Kavanaugh’s unfitness, and Republicans ready to confirm his nomination at any moment. The problem is, I’m not aware of one member of Congress who has changed their position on Kavanaugh’s nomination since the president’s announcement, much less since the beginning of the Judiciary Committee hearing on his nomination. His name has now been advanced to the Senate floor, where the drama will be played out under a new big top circus arena.

Apparently, the issue is not the difference between truth and untruth, but strictly based on ideology. Kavanaugh is a Republican, and the fear of Democrats is that he is not simply a Republican, but a Republican who believes that Harry Blackmun was wrong to make abortion the law of the land from coast to coast in 1973. There are even some Republicans who are perfectly fine with Blackmun’s opinion in Roe v. Wade. It has been argued that Kavanaugh is not among them.

Yet another horrible legacy of Roe v. Wade is the dreadful debacle known as the Kavanaugh hearing. The unintended consequences of poorly conceived Supreme Court decisions have marred the history of the Court, but rarely with the result of convincing highly qualified lawyers and judges to turn down the offer to serve on SCOTUS or any other federal bench.

How can we keep this from chilling the future of the SCOTUS nomination process? Short of a return to virtue in our country, we need a rule, and it is a simple rule. All we need is a deadline after which no new evidence may be used in the hearing process. Had everyone known that all allegations, claims, evidence, and proof was due no later than August 1, 2018, in the Kavanaugh matter the country would have been spared an embarrassing spectacle.

Christine Blasey Ford and the other accusers would have had a certain deadline by which to make their claims known. Senator Feinstein would have known about it, too, and she would have been forced to make these claims in time for the FBI to conduct their routine background check. Senator Feinstein would have certainly raised Mrs. Ford’s allegations (if she thought the claims had merit) long before the story broke toward the end of the Judiciary Committee hearings.

If you have a claim to make, make it. Do not wait. If you wait until after the deadline, the process moves on without you. Currently, the only deadline is the confirmation itself, which is a really bad idea given the current state of affairs in Washington, as well as the ethical desert we call our culture. An ironclad deadline would prevent last minute claims injected into the nomination process by manipulative and scheming politicians seeking to turn the Judiciary Committee hearing into a public execution for partisan reasons.

But what about the victims and what about the truth? Truth is the victim in this case, although victims of sexual assault are the victims as well. Only after the hearings ended were a string of allegations, one more extreme and unbelievable than the next, leveled against Kavanaugh. The next victim of sexual assault will have to deal with the public perception of accusers Deborah Ramirez and Julie Swetnick who had even less credibility and less corroborative evidence than Mrs. Ford. This is saying a lot since all of Mrs. Ford’s corroborative evidence was discredited as each eyewitness she identified—including a close female friend—denied, under oath, having attended any party where what she described took place.

Some might think a firm deadline would not work in the current political climate, but for a long time it has been the normal procedure in our judicial system which is actually a combination of rules regarding evidence and process in cases before the court. When preparing for a trial, the judge establishes deadlines for the parties involved in the lawsuit. These deadlines serve a number of purposes. They make sure both sides are properly prepared for the trial and have had a fair opportunity to see the opposing side’s evidence and speak to their witnesses, and they prevent one side from ambushing its opponent with evidence which has been hidden expressly for that purpose. This way, by the time the matter comes before the jury and/or the judge, it has been thoroughly prepared and each party has their best evidence ready to go. This process has been improved upon over many years, from the days when attorneys walked into courtrooms without any idea what the other side was going to present, until today, when both sides have a nearly complete picture of what their opponent’s evidence will be.

Granted, there are situations when, after a deadline has passed, a judge may allow newly discovered evidence or testimony into a case, but these situations are scrutinized closely to make certain one side has not been dilatory or careless in overlooking evidence which was available to them prior to the deadline. Judges rarely allow an attorney to introduce new evidence without a clear showing that the evidence could not have been discovered prior to the deadline. The chairman of the Judiciary Committee would thus enforce similar rules without controversy if both sides agree to them well before the nominating process begins.

In the Kavanaugh matter, this would have made an enormous difference. Mrs. Ford first contacted her congressional representative, Anna Eshoo, on July 6, 2018. She continued to have conversations and meetings with Eshoo and Eshoo’s staff throughout July. Toward the end of July, Mrs. Ford wrote a letter to Senator Dianne Feinstein, the ranking minority member of the Judiciary Committee, which she received on July 30, 2018. In it, Ford requested anonymity. For six weeks, Feinstein sat on the letter making no effort to verify the accuracy of Ford’s claim. Only at the end of the process, when Kavanaugh’s nomination was likely to receive Senate approval, did Feinstein decide to hand the letter over to the FBI.

The Judiciary Committee hearing began on September 4, 2018, nearly two months after Mrs. Ford first contacted a member of Congress about her allegations, and over a month after Senator Feinstein had received written documentation of the allegations. Not only did Senator Feinstein fail to ask for a more thorough FBI investigation, she did not even share the information with Kavanaugh or any other members of the Judiciary Committee, as is usually the practice. Because the letter was held back, only after the hearing was over did Senate investigators have an opportunity to inquire into the truthfulness of the allegations. And when they did, only Republican investigators made any effort to corroborate the allegations with no assistance from Democratic senatorial staff. By the time Senator Feinstein handed Ford’s letter to the FBI, the agency had long concluded their background check on Kavanaugh, and Judiciary Committee members had asked all of their questions in public hearings and private meetings and were prepared to vote on Kavanaugh’s nomination. It was expected that he would be advanced to the Senate floor with eleven Republicans voting for the confirmation and ten Democrats voting against. This is exactly what happened on September 28, even after Mrs. Ford’s testimony.

It is not as if Senator Feinstein was unfamiliar with the process of judicial nominations or the confirmation process. She had recently served on the Judiciary Committee during Justice Gorsuch’s confirmation, as she had for Justice Roberts, Alito, and Sotomayor. In fact, she has been a member of Congress for twenty-six years and has been on the Judiciary Committee the entire time. Senator Feinstein and her staff are extremely knowledgeable about the judicial nomination and confirmation process. A hard and fast deadline vigorously enforced by the committee chairman after which no new evidence would be received would have required Feinstein to act differently.

However, because no such deadline exists, manipulative senators were able to “wait and see” before deciding at the last minute to introduce Mrs. Ford’s letter into the record or, as did happen, leak her identity to the press. They certainly would not have been allowed to slow down the process with the hope of derailing the nomination by delaying the vote until after the mid-term elections. Such a requirement would mandate the previous senatorial practice of vetting serious claims privately to determine their veracity before giving the candidate an opportunity to respond and possibly even withdraw his nomination if the allegations turned out to be true.

Rethinking these senatorial procedures will make it more likely that qualified and competent people will continue to accept a president’s request to serve in the federal judiciary. As things currently stand, very few people will willingly subject themselves and their family to the hell that Brett Kavanaugh and his wife and children have had to endure.