The confirmation hearings for Judge Kavanaugh to serve on the highest court in the land have turned into what the senators themselves have referred to as a circus, replete with protesters disrupting one of the most solemn occasions in American public life. Many respected members of the Senate Judiciary Committee have unwittingly become performers in this spectacle, which is little more than an embarrassing public feud, a rather juvenile version of the Hatfields versus the McCoys.
Over the past half century, we have tragically witnessed the death of due process in the Supreme Court confirmation process, in direct contravention of the oath senators have taken to defend the Constitution against all enemies, foreign and domestic. Sadly, the enemies of due process appear to be the angry partisans on the left and right and the senators themselves, who have forgotten that our venerable Constitution was the product of due process and compromise.
Due process is a fundamental constitutional principle. It requires notice and a fair hearing before judgment is rendered. For a hearing to be fair, those deciding the matter must be impartial. In the confirmation proceedings involving Judge Kavanaugh, the Democrats on the Judiciary Committee declared their opposition to the nominee before the hearings began and have been intent on destroying him personally and politically to delight their angry political base. There is no due process when members of a tribunal declare a person unfit before hearing testimony — it is the height of unfairness. Surely, any fair-minded American would find the declaration of guilt before a full hearing to be repugnant, wholly inconsistent with the rule of law and fundamental constitutional fairness.
In further compounding their glaring failure to accord Judge Kavanaugh basic due process, the Democrats have ignored the unanimous findings of the American Bar Association’s Standing Committee on the Judiciary, a bipartisan group of our nation’s most highly respected lawyers. Based on a thorough peer review, they gave Judge Kavanaugh the ABA’s highest rating as a nominee of “integrity, professional competence and judicial temperament.”
Sadly, the Republicans, who have declared their support for the nominee, are also culpable. They, too, should listen to all the facts before deciding to consent to Judge Kavanaugh’s nomination. Furthermore, in concert with the office of the president, they have refused access to hundreds of thousands of documents that might be helpful in evaluating Judge Kavanaugh, another failure of due process. The Republicans understandably justify their lack of transparency and due process, in this regard, by claiming that the Democrats have already declared their opposition to the candidate and are merely demanding the papers to be dilatory and find some small piece of evidence to disparage the nominee, to satisfy the demands of their partisan base.
The Republicans insist that they want to push the hearings along to fill the court by supporting a candidate who will follow the Constitution. Their purported allegiance to the Constitution is weakened, however, by their prior refusal to schedule hearings on President Obama’s nomination of Judge Garland, a highly qualified judge and a friend and colleague of Judge Kavanaugh, even though the Constitution mandates that the Senate hold a hearing and offer their “advice” and “consent” regarding a presidential nominee. That refusal to hold hearings was a clear violation of due process and the solemn duty of the Senate to concur by offering their advice and consent, as outlined in Federalist #76.
My father, a very fine lawyer, was committed to the rule of law and fairness. Not surprisingly, when I broke a family rule, I was subject to some penalty. The punishment I feared above all others was rendered when my father solemnly declared his judgment with these words, “I am disappointed in you. You can do better.” It was a devastating reminder that I had fallen short of what I knew to be right.20 comments on this story
As I have watched the Kavanaugh confirmation hearings, I keep thinking of that lesson learned at the feet of a just and loving father. Most of the senators are honorable men and women who have been swept away by a bitter partisan feud. My father would declare, “I am disappointed in both parties. You can do better.” The senators can do better. If one or two senators, on both sides of the aisle, come to realize how disappointing and constitutional suspect their actions are, they will risk the venom of their angry base and end a feud that is robbing us of due process and dignity.