Mitch McConnell took to the Senate floor and rendered his verdict on the latest allegations of youthful sexual harassment against Brett Kavanaugh. The Supreme Court nominee had been targeted by “smears,” he asserted. “I want to make it perfectly clear: Judge Kavanaugh will be voted on here on the Senate floor.”
Meanwhile the organs of conservatism have rallied to Kavanaugh’s defense with increasingly strident rhetoric. The principle in which conservatives are grounding their ever more resolute defense is Due Process. “The core tenet of Anglo-American law is that the burden of proof always rests with the person making the accusation. An accuser can’t doom someone’s freedom or career merely by making a charge,” thunders The Wall Street Journal editorial page. “The accuser has to prove the allegation in a court of law or in some other venue where the accused can challenge the facts.”
Due process is a useful concept being stretched somewhat beyond its value for the situation at hand. As many commentators have pointed out, a Supreme Court appointment is more like a job interview, in which an applicant may be rejected on evidence falling well short of what is required to convict him in a court of law. Imagine Democrats had appointed a jurist who had been accused of, say, burning American flags in college. Would Republicans need legal proof to cite this as a mark against them? Or would mere credible allegations suffice?
While they may be setting the burden of proof at the wrong level, though, conservatives do have a point. Some form of due process is certainly in order, and Kavanaugh has a right to have his accusers questioned, to present evidence on his own behalf, and so on. The obvious problem with their argument is that due process of any kind is being thwarted not by Democrats but by the Republican leadership.
It is Democrats who are requesting that the FBI be brought in to investigate the charges against Kavanaugh, and the Trump administration that is denying them. It is Democrats who are demanding the testimony of Mark Judge, an eyewitness to one of Kavanaugh’s alleged offenses. And it is McConnell who will not allow it, and who insists the entire matter must be decided solely on the basis of competing testimony from a maximum of two people: Kavanaugh and Christine Blasey Ford.
It is bizarre that conservatives have managed to pose as champions of due process without acknowledging this, pretending to care about evidence while supporting the side that is preventing it from being considered. “We are willing to follow the facts wherever they lead,” allows an indignant National Review editorial, “but so far, they lead only to the belief that this is a disgraceful episode that makes Borking look above-board and responsible by comparison.”
If the Republican leadership has its way, the facts won’t “lead” anywhere. The Senate will race through a perfunctory he-said-she-said, then proceed directly to voting. Indeed, while conservative intellectuals are rallying around due process, conservative legislators are rallying around speed. The most common Republican buzzword to dismiss the charges against Kavanaugh is “delay.” (i.e., Sen. Tom Cotton: “The Democrats are engaged in a campaign of delay and character assassination against Judge Kavanaugh.”)
McConnell has already announced the outcome of the proceeding. No doubt McConnell simply doesn’t care very much if Kavanaugh sexually assaulted one or more women in his youth as long as he can be counted on to vote the Federalist Society party line from the bench. But he doesn’t actually want to defend that position, and so he is grudgingly providing the barest pretense of due diligence before handing down his predetermined verdict. The Republican position is due process without any process.
Update: Following up its previous editorial demanding that the core tenets of the Anglo-American legal tradition demand that Kavanaugh hearings allow a full airing airing of facts, the Journal has a new editorial today: “Once Ms. Ford and Mr. Kavanaugh are heard on Thursday, there should be no more delay. Call the roll and vote.” So much for due process!