Due Process and Supreme Court Nominations

As the recent history of Supreme Court nominations has played out, appointment to the highest Court in the land has become more and more political. In 2016, after the death of Justice Antonin Scalia, President Obama nominated Merrick Garland to replace him. Prior to 2016, with the exceptions of Clarence Thomas and Robert Bork, nomination to the Supreme Court was usually accepted by the Senate. Nominated in 1987 by President Reagan, Robert Bork’s political stances caused great consternation with the Democratic majority in the Senate and Bork’s vote failed 54-42 with 6 Republicans voting against him.

In 1981, President G.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. With Thomas, after the Judiciary Committee had voted to send the nomination to a full vote of the Senate, a last-minute accusation by Anita Hill of sexual harassment created chaos in the Senate with additional hearings and cross-examination of Hill. Eventually Thomas was approved by the Senate.

In 2016, Merrick Garland, the majority of Republican Senators refused to hold a hearing or to consider Garland for the post. Many felt this was infinitely unfair to a qualified judge. The Republicans were steadfast in their belief that a Supreme Court Justice should not be nominated by a lame duck president, and that position should be filled by the next President.

President Trump did nominate Neil Gorsuch in January 2016 who was confirmed by a 55-45 vote in the Senate. The Judiciary Committee hearings were focused along party lines, and the Judiciary Committee approved Gorsuch 11-9.

Now we are facing the great unpleasantness of the David Kavanaugh nomination. After the Judiciary Committee had held hearings but before they voted to send to the full Senate, two women have come forward accusing Kavanaugh of sexual abuse when he was 17 and 18, respectively. There have been great hue and cry of political dirty tricks, delay and foul. The question is what is the procedure facing Kavanaugh, his accusers and the Senate?

Both Kavanaugh and his accusers are demanding due process. Due process is an amorphous term which is interpreted from the Fifth Amendment to the U.S. Constitution that states: “no person shall be deprived of life, liberty, or property without due process of law.” Obviously, a Senate Judiciary Committee hearing begs the question of whether due process applies. Kavanaugh wants to confront his accusers, a basic tenet of due process. His accusers want to control the process of the hearing, which would stand due process on its ear.

The Rules for Senate Judiciary Committee Hearings do not address how the hearing is to be conducted. Given the rancor, constant interruptions and grandstanding at the last Kavanaugh hearing, it will be questionable whether any of the witnesses will receive “due process” at the hearings on these sexual abuse accusations. If Kavanaugh is not permitted to be in the room with his accusers, as the accusers have demanded, he would have a legitimate argument that he was not afforded due process. The question is whether that makes any difference or not. The accusers are demanding their “due process rights” , whatever that might be.

As we have seen in the developments of the last week, any procedural issues or debates are decided by the Chairman. At this moment, the Republicans hold a majority of the Judiciary Committee, which assures that Kavanaugh will be approved for a full Senate vote if the Committee members vote along party lines. One can argue that this part of the process is like a glorified job interview or a beauty pageant. Due process is not considered in those events.

How the Senate Judiciary Committee handles this chaos will be precedent for contested Supreme Court nominations for the future. So far, the politicking by the members of the Committee has not been impressive. Whether you are for Kavanaugh or against him, I think everyone is disgusted with how the Senate is handling this problem.

 

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