Columns, Constitutional Law, Criminal law, Politics

A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review

senate_large_sealBelow is my Hill newspaper column on the unfolding controversy surrounding the allegations of sexual abuse brought against Judge Brett Kavanaugh.  As we wait for the week long FBI investigation to be completed, the question remains the same: what is the standard that should apply to such cases once all of the evidence laid before the Senate?  As the FBI prepares to submit new evidence, the Senate still must articulate a standard of review for that evidence.

Here is the column

The confirmation hearing for Brett Kavanaugh seems to have morphed into a national hearing on the #MeToo movement. The desire to “speak to women” through the hearing ignores the fact that there are real people, real factual disputes, before the Senate Judiciary Committee, not props for a public morality play. These people have rights, and senators should be clear as to the standards they will apply.

Democratic senators lined up almost immediately after the release of Christine Blasey Ford’s letter to announce that they believe her, not Kavanaugh. Senator Mazie Hirono (D-Hawaii) was asked on CNN whether Kavanaugh should even be given the “same presumption of innocence as anyone else in America?” It was a question that would not ordinarily prompt equivocation or hesitation. Yet, affording Kavanaugh a presumption could be viewed as questioning Ford, so Hirono said she would “put his denial in the context of everything that I know about him in terms of how he approaches his cases.”

Some Republican senators have shown the same disregard of their duty as fact finders in dismissing Ford’s allegation, as well as those of two other women. The public announcements by senators that they believe either Ford or Kavanaugh illustrate how both sides are dispensing with any pretense of fairness or due process. They are yielding to the politics of the moment, regardless of the cost to either individual.

The #MeToo movement has forced recognition of the widespread incidence and tolerance of sexual harassment in society, including unreported sexual assaults. All movements, however, risk mutating into something dangerous when standards of proof are discarded in favor of meting out popular justice. If that happens here, #MeToo could go from a movement of equality to a form of McCarthyism where an accusation is as good as proof. We reach that point when those calling for a presumption of innocence are treated as suspect, and the line between an allegation and evidence disappears.

As the hearing today begins, there has been a plethora of statements that the Senate Judiciary Committee is not a court of law and, thus, not subject to any standard of proof. If only it were that simple. However, the committee is sitting as a fact finder, not just a political body. There is a difference between a hearing on legislation, where senators vote based purely on politics, and a hearing where the reputations of individuals hang in the balance. Congress and courts have long recognized that difference. While rules of evidence do not bind committees, they have historically sought to follow basic rules of due process in impeachments and other proceedings tasked with finding facts underlying ultimate decisions of confirmation, removal or oversight.

Parties often argue privileges, immunities and other defenses before committees. Certain constitutional rights do apply in legislative proceedings. It is precisely those elements that distinguish congressional committees from the mob. They may not have the obligation to guarantee specific rules of due process, but that does not give them license to ignore due process. Those crafting our laws swear to uphold not just the express obligations of the Constitution but the values it represents.

That brings us back to Kavanaugh. A handful of women accuse him of alarming acts of sexual abuse. They deserve a hearing and, yes, further investigation. However, all the allegations contain gaps and shortfalls in corroboration, which is not surprising, given the long passage of time. In a court of law, most of the declarations offered to the committee would be inadmissible. Likewise, while Kavanaugh’s high school calendar would be admissible, it would not be particularly weighty as evidence.

The difference between a court and a congressional committee is captured in the fact that this type of information can be admitted and considered by the committee. However, that does not mean senators can dispense with any standard of proof. At the very least, they should believe — by a “clear preponderance” of the evidence — that Kavanaugh is guilty, if they will use it as the basis for their vote. That is a standard lower than the “beyond a reasonable doubt” of a criminal trial, but it is higher than a “mere preponderance” of evidence used in some civil cases.

Before being lowered by the Obama administration, students accused of sexual misconduct were reviewed under the clear preponderance standard or a “clear and convincing evidence” standard. This generally meant that the person was likely guilty to roughly a 75 percent certainty. It was meant to require a substantive burden when a school makes a decision that likely creates a lifelong stigma for a student found guilty.

A Supreme Court nominee should be accorded no less protection. The clear preponderance standard allows a senator to be less than certain but to have more than a mere preponderance where even the slightest degree above a 50/50 determination is sufficient. It means it is not enough for a senator to find that an allegation and a denial are in simple equipoise — the classic “he said, she said” status. An allegation and a denial leaves a charge unproven, even under a preponderance standard.

Moreover, that standard does not change by multiplying the number of allegations if they still lack corroboration or support. Each should meet the clear preponderance standard to be used as a dispositive basis for denying a confirmation and forever labeling a nominee as a presumptive rapist. Finding an allegation as disproven doesn’t mean you don’t believe alleged victims but, rather, that the evidence does not support a punitive resolution.

Where multiple accounts do matter is when they supply “pattern evidence.” All of these allegations describe a pattern of heavy drinking and aggressive conduct. In a real court, such evidence would be difficult to admit, even criminal acts going back over 10 years are often excluded in trials. Yet, that again is a valid difference between this committee and a court: It can and should consider pattern evidence.

Kavanaugh may have made himself more vulnerable to such arguments with his categorical denials of knowing these women, being at such parties, or engaging in drunken conduct. Those statements create a serious question of his veracity, if the committee finds evidence to the contrary.

In other words, there are legitimate questions to be investigated and a standard of proof to be applied. If the senators believe that, by a clear preponderance of evidence, he lied or engaged in these acts, they have a principled reason to vote against him. Otherwise, they are left with the original merits of the confirmation decision.

In presenting themselves to this committee, two people are placing their lives and reputations on the line. The least senators can do is guarantee they will be considered impartially under a coherent, fair standard. If the hearing becomes — as it increasingly appears — a mere extension of politics by other means, these senators have failed these witnesses and their institution at a truly historic moment for this country.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

TAGS MAZIE HIRONO BRETT KAVANAUGH SUPREME COURT GOVERNMENT CONGRESS SENATE
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219 thoughts on “A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review”

  2. Another old friend is speaking out…

    From the linked article:

    “Ludington, who writes that Kavanaugh’s testimony made him “cringe,” told the Washington Post that drunken idiocy, especially by a teenager, should not “condemn a person for the rest of his life.” But Kavanaugh’s willingness to lie under oath “should have consequence,” he said.”

    http://nymag.com/daily/intelligencer/2018/09/college-friend-shares-tales-of-kavanaughs-drunken-behavior.html

    “In a statement published by the Times, Ludington recounted a specific incident of Kavanaugh going into a booze-induced rage:

    ““When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man’s face and starting a fight that ended with one of our mutual friends in jail.”

    “Ludington, who writes that Kavanaugh’s testimony made him “cringe,” told the Washington Post that drunken idiocy, especially by a teenager, should not “condemn a person for the rest of his life.” But Kavanaugh’s willingness to lie under oath “should have consequence,” he said.

    ““It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation’s most powerful judges,”he said. He intends to take his information to the FBI on Monday morning, but it’s not clear those investigating the Supreme Court nominee will be interested in hearing it.”

    He took an oath to tell the truth, and then he lied.

    What a swell guy — Kavanaugh. And a great role model for our kids.

  3. If I applied for a job, had multiple interviews, was almost hired, and then someone from my past alleged I’d committed the acts that Kavanaugh is accused of by Prof. Ford, I think it’s fair to say the employer would reject my job application and I would not be hired. With or without an FBI investigation.

    We are not owed anything in this life. Kavanaugh’s emotional outrage (and his accusations of a conspiracy theory) demonstrated he does not show objectivity and he clearly lacked any semblance of composure that you would expect from someone who who is nominated to become a Supreme Court Justice. Just sayin’….

    1. Yes, a scion of privilege who was insufficiently disciplined in the duties of the fortunate.

      1. David Benson is the King of Making Stuff Up and owes me twelve citations (one from the OED) and the source of a quotation, after seventeen weeks, and needs to cite all his work from now on. – if you had answered as many questions as Judge Kavanaugh has and your job interview took place on national television and then at the very last minute someone accused you of a sex crime from 36 years ago that you did not do, how would you handle it? And then more sex crime claims come out of the woodwork. Your wife, your children and yourself receive death threats. Now, how are you handling it?

  4. “Ford changed the date of the assault from mid-80s when she was at Chapel Hill to early 80s when Kavanaugh was in high school and Judge worked at Safeway. I think she slipped when she said the assault affected her grades at UNC. More likely the alleged assault happened then.”

    DC McAllister tweet
    30 Sep 2018

      1. Cindy Bragg – any assault, assuming it took place, would have affected grades closer in time to the time it happened. So, attacked in her sophomore summer? Junior year grades would be bad, assuming it happened or she was affected by it. A delayed reaction is only if she had an underlying problem (remember is alluded to those) and those arose in college. And then it may have just been the underlying problem itself.

        enigma was blaming a possible alcoholism on her being attacked. No!!! You are an alcoholic or you are not. This might have caused her to drink more but it would not cause her to be an alcoholic.

        1. Paul C…..yes I see what you’re saying and agree. Did you hear Joe Digenova on ” next revolution” tonight…….saying exactly what many are thinking. She is a disturbed person…….but Kavanaugh had nothing to do with that. You cannot believe anything she says.
          I feel sorry for enigma because he is afraid to think . He needs to seriously nourish his own intellect… but he is happy to parrot
          “information” and “truths”…
          He desperately and frantically wants to comfort and protect the ghosts of slavery…..Tall order.

  5. We should not let Senators who have a serious lie made by them in their past, to vote on whether this guy is a liar. Sen. Blummenthal lied about having served in Vietnam. He needs to be removed from the Senate and certainly precluded from voting on this Supreme Court nominee.

  6. Atty. Katz represented Bill Clinton against the trailer trash. She’s a fine upstanding professional who remains consistent in her ethical view of the world.

  7. The evidence proved that O.J. Simpson was guilty.

    The evidence proves that Judge Kavanaugh is innocent.

  8. Here’s Another Column From “The Hill”:

    KAVANAUGH SIDES WITH CORPORATIONS 87% OF THE TIME

    Kavanaugh’s confirmation to the Supreme Court would solidify an extremist court that places corporate interests before people’s interests for at least a generation. His record demonstrates a judicial philosophy more interested in protecting the rights of corporations than of the most vulnerable in our country as the numbers prove. A recent analysis conducted by Public Citizen found Kavanaugh has decided in favor of big corporations a whopping 87 percent of the time. In one of his most recent cases, Kavanaugh wrote in his dissenting opinion that net neutrality — the idea that internet service providers should treat all Internet traffic equally — violated First Amendment rights. The First Amendment rights, that is of companies like Comcast, literally the most hated company in this country.

    When Kavanaugh isn’t doling out legal protections for the country’s biggest corporations and richest executives, he is silencing the civil rights of everyday people. As a Court of Appeals judge, Kavanaugh helped make 2016 the first presidential election year during which 15 states had new voting restrictions impacting communities of color, the poor, students, and the elderly. We are now living with the results of weakened voter access thanks to Kavanaugh.

    Edited from: “Kavanaugh Would Prioritize Corporations Over Everyday Americans”

    From THE HILL, 9/4/18

    1. One doesn’t need Dr Ford’s allegations to know Kavanaugh is wrong for the court. The last thing America needs is another tool of big business ruling against employees and consumers.

    2. The question is if he sides correctly with the law.

      If, for example, 10% of people own corporations, should he side with corporations 10% of the time, to make sure that he matches the demographics or should he, oh, I don’t know, apply the law.

      I do not know what his record is on having his rulings overturned. I think that would be a better indicator of his accuracy as a judge.

      1. He was overruled by a panel, or rather, eventually outvoted in an important abortion case involving a legal child. That is, she was 17. His decision there certainly smacks of privileged paternalism.

        1. David Benson is the King of Making Stuff Up and owes me twelve citations (one from the OED) and the source of a quotation, after seventeen weeks, and needs to cite all his work from now on. – Judges get over-ruled. It is part of the process depending on your level. If you are on SCOTUS, you write the minority opinion or sign on to it or add you own. Ginsburg will be doing this a lot if she wishes to remain on the court for another 5 years.

        2. He wrote the dissenting opinion about conferring special rights to an illegal immigrant not enjoyed by the legal citizens of the State of Texas. Minor children must have the consent of at least one parent or guardian before getting a medical procedure, such as an abortion. The child in question, an illegal immigrant, was to be put into the care of a sponsor, a family member, before the child could obtain an abortion.

          He did not block her right to an abortion. He applied the same rules in the state to her as to everyone else.

          Writing the dissenting opinion on a panel is not the same as having his rulings overturned on appeal, as you should be well aware.

          Now, back to my original point. Rather than comparing the demographics of who won before him, which is ridiculous, one should look at his record of having his rulings either upheld or overturned. I do not know how his record on appeal compares to other judges on average.

          What are we supposed to do, apply Affirmative Action to court? Forget justice or pesky things like the law or evidence. Half of defendants should win because they are female, and half because they are male.

  9. Misquoting from a play by Wm Shakespeare

    Methinks he doth protest too much.

    And cribbing from another play

    Kavanaugh is an honorable man. So are they all; all honorable men.

    1. David Benson…….here’s the Shakespeare quote you need to read and re-read. I’m having my little grandsons memorize as one of the most important quotes they will need in life. Their ages are 10 and 7. Maybe you’re old enough to understand it, too. In my opinion, it is the verse from Shakespeare, or from anywhere, that is most crucial to recall and understand today…..and the most applicable at this critical time in our history.
      “Good name in man and woman, dear my lord,
      Is the immediate jewel of their souls:
      Who steals my purse steals trash; ’tis something, nothing;
      ’twas mine, ’tis his, and has been slave to thousands;
      But he that filches from me my good name
      Robs me of that which not enriches him,
      And makes me poor indeed.”

      1. Here’s a quote from my 94-year-old grandmother, who has almost a century of experience dealing with people:

        “When you don’t have the facts on your side, yell.”

        And there seems to be a lot of yelling going on from the Kavanaugh camp.

        Liars often yell when confronted to try to intimidate people into believing them, or to drown out dissenting views.

        1. MarryA – police who interrogate people expect innocent people to vehemently voice their innocence. The more you press them, the more they should fight back. They expect that from the innocent.

          Yes, I do watch too much Forensic Files.

            1. Cindy Bragg – I watch/listen to it when I am trying to get to sleep. Sadly it stops play at 3 am and the news starts so I wake up. 🙂

              1. Paul C….LOL…..I do the same sometimes with Murder She Wrote!
                BTW………watch out for those storms in your area ( I think?)

                1. Cindy Bragg – light rains today, should hit tonight. Some people are getting sandbags.

                    1. Cindy Bragg – sadly the four-legged person passed in June. We almost rescued another one yesterday, but there was a hiccup. So it is just the wife and me.

          2. No, the do not expect them to yell at them. Yelling at an officer while being questioned is a red flag that you are hiding something. Being calm and reasonable is the best way to handle questioning.

            1. MarryA – and you know this because you have been accused of sexual assault after 30 hours of intense questioning of your legal thinking, etc.?

            2. ” Yelling at an officer while being questioned is a red flag that you are hiding something. Being calm and reasonable is the best way to handle questioning.”
              ***********************************

              Really, and so it’s been since antiquity I suppose:

              16 One day two women[a] came to King Solomon,

              17 and one of them said:

              Your Majesty, this woman and I live in the same house. Not long ago my baby was born at home,

              18 and three days later her baby was born. Nobody else was there with us.

              19 One night while we were all asleep, she rolled over on her baby, and he died.

              20 Then while I was still asleep, she got up and took my son out of my bed. She put him in her bed, then she put her dead baby next to me.

              21 In the morning when I got up to feed my son, I saw that he was dead. But when I looked at him in the light, I knew he wasn’t my son.

              22 “No!” the other woman shouted. “He was your son. My baby is alive!”

              “The dead baby is yours,” the first woman yelled. “Mine is alive!”

              They argued back and forth in front of Solomon,

              23 until finally he said, “Both of you say this live baby is yours.

              24 Someone bring me a sword.”

              A sword was brought, and Solomon ordered,

              25 “Cut the baby in half! That way each of you can have part of him.”

              26 “Please don’t kill my son,” 𝐭𝐡𝐞 𝐛𝐚𝐛𝐲’𝐬 𝐦𝐨𝐭𝐡𝐞𝐫 𝐬𝐜𝐫𝐞𝐚𝐦𝐞𝐝. “Your Majesty, I love him very much, but give him to her. Just don’t kill him.”

              The other woman shouted, “Go ahead and cut him in half. Then neither of us will have the baby.”

              27 Solomon said, “Don’t kill the baby.” Then he pointed to the first woman, “She is his real mother. Give the baby to her.”

        2. Funny…all I hear is the Dem/media smear machine yelling….at organized protests, on elevators, in restaurants, on the street corner, on cable shows, on late night “comedy” shows, on The View, on SNL, in Hollywood, from music concert stages, from…..everywhere. Why do you think they are literally losing their minds over a judicial appointment?

        3. MarryaMin………..well, I’m a granny too, so I ‘m going to “trump” your granny. There are many many reasons why people yell. She was just trying to get you kids to be quiet! Trust me. It had notyhing to do with facts, 99% of the time.

        4. or people yell when they are mad because of false accusations.

          a stone cold liar always stays under control, in the telling or under cross, but normal people find themselves upset when confronted by falsehoods

  10. Is perjury a disqualifier? Is verbally attacking Senators a disqualifier? Is an angry partisan attack a disqualifier? We saw all of this. The perjury has been committed throughout his confirmation, including that of 12 years ago.

    Is sexual assault a disqualifier? I agree that it’s difficult to prove a negative, but a thorough investigation should provide enough evidence one way or the other. An FBI investigation has now been ordered. President Trump says there are no restrictions but the WH counsel, Don McGahn who is sheparding the Kavanaugh confirmation, has put severe restrictions on the investigation. Consider McGahn’s conflict of interest and the fact that he is insubordinate by restricting the FBI when the President said no restrictions. Of course, Trump could be lying about there being no restrictions.

    1. Perjury should be a disqualifier for office and subject to a court trial.

      Kavanaugh has been accused of perjury committed during the proceedings for his current position. I and others think that he outright lied during last Thursday’s debacle.

      No, he has disqualified himself from judgeships by dissembling.

    2. It’s called ‘righteous indignation’ in the face of being falsely accused and then presumed guilty because you’re the man and you are a Republican. And then having your character assassinated, your family threatened, your reputation destroyed, and your entire life viciously smeared in the media based on one 40 year old flimsy accusation. And you dare to say to this man, “Why so angry, Judge Kavanaugh, it’s not very judicial of you”???

      1. God I hate Democrats, SNL, Hollywood actor/activists, and the Dem/media smear machine right now. And IMO, Chrissy Ford is a liar and not credible. Get her under oath in an FBI interview. Let’s see how her story falls apart under proper scrutiny.

  11. However fair and just a system or process is constructed or organized is meaningless if the managers of that system choose to ignore safeguards and protections.

    Given the manner for which common decency and due process was abandoned in these Senate hearings, a person would be foolish to submit themselves to this kangaroo court as a requirement of any government position.

    The senate made itself into a greater national embarrassment than it already was. I did not formerly believe this possible, but they somehow managed such a stupendous feat. Now it is not only just a joke, but it goes out of its way to threaten someone during a job interview with criminal prosecution because they do not like the applicant’s reference.

    And these attacks are lobbied against a politically powerful person such as Mr. Kavanagh. Just think what would happen if these senators decided they want to exact revenge against an ordinary person.

    The only constitutionally permitted manner for which we can put a stop to these people is to vote them ALL out of office and start over with new candidates, preferably of a new political party or preferrably those with no party affiliations.

    1. Ben Franklin, we gave you “…a republic, if you can keep it.”

      America couldn’t.

      Franklin’s was a restricted-vote republic in which criteria were met by citizens enabling them to vote. The early criteria were: Male, European, Age 21, 50 lbs. Sterling or 50 acres. Millions of welfare recipients and public workers were created by the welfare state and they have a bias to vote for the largest paycheck.
      _____________________________

      Merriam Webster

      republic

      b(1) : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law
      ______________________

      Tyler’s Dictatorship arises from one man, one vote democracies succumbing to demands for largesse by the masses.

      After America collapses, patriots will reimpose a restricted-vote republic and re-implement the manifest tenor of the Constitution, under which the welfare state of central planning, control of the means of production (i.e. regulation), redistribution of wealth and social engineering can never exist, which was the original intent.

      – Article 1, Section 8 gives Congress merely the power to tax for “…general Welfare…” not individual welfare. The entire American welfare state is illegitimate and unconstitutional.

      – Private property means property is held by an individual not the government and “…in the exclusion of every other individual…” and government has no authority to possess or dispose of private property with the sole exception of legislated Eminent Domain.

      Freedom and free enterprise under a government that is infinitesimally small and severely restricted elected by a body of capable, successful and qualified citizens entitled to vote.

  12. Brett wasn’t the first to be accused nor the last time. Jesus got angry & overthrew the merchant tables in the house of God.

    “And Jesus went into the temple of God, and cast out all them that sold and bought in the temple, and overthrew the tables of the moneychangers, and the seats of them that sold doves, and said unto them, it is written, my house shall be called the house of prayer; but ye have made it a den of thieves.”

    God is judge of all the earth & it isn’t the first time he got angry nor the last time.

      1. nice clip from Mockingbird.

        but see there was the undertone of class and regional prejudice in that, to say the least. it is a work of fiction inspired by real events to be sure, but fiction.

        and staged by Hollywood to accentuate the book’s impact.

        in the movie, the woman who cried rape against the black man, miss mayella is PWT; her inferiority is implied to audience by her thick southern accent; peck’s superiority is implied by his yankee accent; her bare arms and short dress accentuate her sexually to the audience, raising the notion that perhaps she seduced the accused black man; and most of all, she has a low educational level made obvious by her poor grammer. ;

        by Ms Ford has a phd’ we hear her called DOCTOR ford a hundred times; thus to emphasize, she CANT be a false accuser like Miss Mayella.

        she has glasses; she has no makeup; her arms and legs are not bare like Miss Mayella. DOCTOR Ford can’t be a false accuser like her….

        Can she?

        1. The back story of the Ewells and the distinction between Mayella and the rest of the family wasn’t to be found in the film version. The family is white trash not because they’re poor but because they live on relief checks and what their father cadges from hunting and trapping. (Which the narrator indicates he, alone in the town, was permitted to do out of season). Only the father and oldest daughter are literate and the other children do not attend school. The Ewell’s are juxtaposed to the Cunninghams, who farm, pay their bills in cash or in kind, and send their children to school.

          Again, the people promoting Blasey’s fictions despise the Ewell’s, the Cunninghams, and the Finch’s et al. They’re OK with the Robinsons, provided the Robinsons cast a bloc vote for the Democratic Party.

          1. yep well you got my meaning i just wish others would

            i was forced to read and watch To Kill a Mockingbird in School and fair enough but now im sure it may just drop out of the PC lexicon

            of course Finch shoots a rabid dog in it too, and no good American would have a gun anymore, would he?

  14. The Dems and the media have two new talking points:

    Chrissy Ford is ‘a national hero’ …yes, one flimsy accusation is enough to destroy a good man’s life and tear apart a country that is now devolving into a mass hysteria not seen since the 2016 election of Donald Trump.

    Judge Kavanaugh “lacks the temperament” to be a judge… because he angrily and emphatically defended his innocence in the face of false and outrageous allegations.

    Tells us all we need to know about the Democrat party of today.

    Regarding the supplemental FBI investigation the Dems screamed for….has anyone heard if Chrissy Ford has been interviewed yet?

    2. Your hysteria distracts you from the most relevant question for you, your ilk, the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make: “what is that ticking sound”?

      to t-hott bobbie

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