What Kavanaugh case means for 'innocent until proven guilty'

In the Senate standoff over confirming Judge Brett Kavanaugh to the US Supreme Court, two paradigms are hurtling toward each other in a clash: the age-old legal standard that someone must be presumed innocent until proven guilty, and the new #MeToo social norm that accusers of sexual assault should be believed.

One standard would absolve Judge Kavanaugh; the other could doom his nomination.

These two views butted heads on NBC’s “Meet the Press” on Sunday. Sen. Patty Murray (D) of Washington told host Chuck Todd that “I think it's really important, in this time, in this day, that we recognize when women speak out, that we should presume that they are innocent.”

Her Republican colleague, Sen. David Perdue (R) of Georgia, however, sided with the legal standards that go back to Roman criminal law in the second century. “This is a democracy. We have a judicial system. But we also have innocent until proven guilty.” Like “any courtroom in our land,” he said, the Senate needs to get at the truth.

But the Senate is not a courtroom. A confirmation hearing is not a criminal trial. And that is where some of the confusion and debate about “burden of proof” arises, say experts.

The confirmation hearings “are not court hearings in any respect, except that witnesses retain all their constitutional rights – including the refusal to answer questions that might incriminate them,” writes former Senate historian Don Ritchie in an email.

Rather, hearings are meant to help the Senate make up its mind – and if they shape public opinion along the way, that opinion in turn further “helps the Senate make up its mind,” he writes. Its constitutional role is a political one, to provide “advice and consent” to a president – not to interview a job applicant, which is more the president’s role, but to share in the process, and to either agree or act as a check.

Beyond legal standards?

While the clash of legal with social standards is the conversation right now, it’s not an accurate one, says Lisa Graves, former chief counsel for nominations for Sen. Patrick Leahy (D) of Vermont, when he was the ranking member of the Senate Judiciary Committee.

The criminal standard is “not applicable” here, she says. The consequence of believing accuser Christine Blasey Ford – who maintains that a 17-year-old intoxicated Kavanaugh pinned her to a bed at a high school party, groped her, put his hand over her mouth, and attempted to remove her clothes – is not that Kavanaugh would lose his liberty and go to jail. It’s that he would lose the opportunity to ascend to the highest court in the land for a lifetime appointment.  

“The consequences are utterly different,” she says. In the showdown hearing on Thursday morning, where Professor Ford and Kavanaugh are expected to testify, the benefit of the doubt should go to the Supreme Court, not the nominee, emphasizes Ms. Graves. “It’s the integrity of the court that is at stake, not what the nominee wants or the president wants.” The burden is on the nominee, she says, “to establish that he or she should be trusted with this enormous power.”

Over the weekend, other claims of sexual misconduct by a young Kavanaugh surfaced. The latest allegation comes from a classmate of Kavanaugh’s at Yale University. Deborah Ramirez told The New Yorker that Kavanaugh exposed himself to her, putting his genitals in her face, while at a dormitory party where she and other students were playing a drinking game. 

Ms. Ramirez described the experience as humiliating, saying he was laughing while other students taunted her to “kiss it,” and that she inadvertently touched him while trying to push him away. The New Yorker was unable to confirm the account with other eyewitnesses Ramirez named as being present.

Kavanaugh denied the account as “another false and uncorroborated accusation from 35 years ago.” Once again, “those alleged to have been witnesses to the event deny it ever happened,” he wrote in a letter Monday to the chairman and ranking member of the Senate Judiciary Committee. 

“These are smears, pure and simple. And they debase our public discourse,” he continued. “But they are also a threat to any man or woman who wishes to serve our country. Such grotesque and obvious character assassination – if allowed to succeed – will dissuade competent and good people of all political persuasions from service,” he said.

Graves hears that criticism, but says it is baseless. It assumes, she says, that most men would engage in these kinds of activities. “I think that many women have men in their lives – husbands, sons, friends, and most of those men probably did not whip out their genitals and shove them in a woman’s face.” It’s not like a date at a movie where a man makes a pass and is rebuffed, she says. “I don’t think this is the norm for men. I think this is abnormal.”

The fact finders' burden

While it’s true that the Senate is not a court, senators must be committed “to giving a fair hearing and witnesses due process,” says Jonathan Turley, a legal scholar at George Washington University Law School.

But that is not what they have done. The process has been “deeply troubling on both sides,” he says, with Democrats legitimately complaining about the withholding of documents related to Kavanaugh and Republicans furious that the Ford allegations were withheld until the 11^th  hour. He called the politicization of this confirmation “grotesque.” 

First and foremost, he says, senators “should not be publicly stating that they believe or disbelieve these witnesses. They should be affirming that they keep an open mind as to the allegation, and that there is some standard of review.” 

There should be an opportunity for both sides to put evidence into the record, and while Democrats – and Ford’s attorneys – want an FBI investigation of her allegations before any hearing, Professor Turley questions what the FBI can do if everyone alleged to be at the high school party has already given statements that they know nothing of it. The first priority should be to get the witnesses to testify under oath, he says. 

“There are two people here, whose lives are likely to be changed dramatically by this hearing,” he says. “The senators are now in a position of fact finders, which heightens their responsibility to remain fair and neutral.”

There may be more allegations yet to come. Over the weekend, lawyer Michael Avenatti (who's also the attorney for adult-film actress Stormy Daniels) tweeted out an email exchange he had with Mike Davis, the chief counsel for nominations for the Senate Judiciary Committee, alleging knowledge of house parties in the 1980s during which Kavanaugh and others plied girls with alcohol or drugs “in order to allow a ‘train’ of men to subsequently gang rape them.” Avenatti added: “There are multiple witnesses that will corroborate these facts.”

At least on Monday, neither Kavanaugh nor Senate majority leader Mitch McConnell (R) of Kentucky, gave any indication of withdrawing. Indeed, they dug in. Kavanaugh wrote that “vile threats of violence” against his family “will not drive me out,” nor will the “last-minute character assassination” succeed.

In a blistering speech on the Senate floor, Senator McConnell blamed Democrats for their “despicable” smear and lack of evidence, pointing out that The New York Times decided not to publish the Yale account after looking into it, because it was unable to corroborate the story.

“I want to make it perfectly clear – Judge Kavanaugh will be voted on here on the Senate floor. Up or down,” he concluded. Notably, he was no longer promising confirmation.