A couple of weeks ago, I played for you the opening statement of Nebraska Senator Ben Sasse during the Brett Kavanaugh nomination hearings where he lamented the Legislative Branch’s abdication of its powers prescribed in the Constitution. It was Sasse’s point that such Supreme Court nominations have taken on a life or death hysteria because lawmaking is no longer done in Congress–but rather in the White House and in the Supreme Court chambers. But now, the Legislative Branch is about to take on the role of the Judiciary by holding hearings on the accusations of attempted sexual assault against Kavanaugh made by a teenage acquaintance. And the announcement was made on the anniversary of the signing of the Constitution.
Do not compare the accusations made by Anita Hill against Justice Clarence Thomas–which were vetted during Senate committee testimony in 1991–with the accusations made against Kavanaugh today. We are not talking about dirty jokes in the office and creepy offers to buy drinks. We are talking about the attempted commission of a crime here. But rather than conducting a trial in a court of law where rules govern the process–and provide protections for both the accuser and the accused–this will be a show trial conducted by a non-judicial body and without a jury of the accused’s peers.
Consider that hearsay statements will be allowed. There will be no physical evidence entered into the record. Discovery will not be provided to the two parties involved. Probative questions not related to the actual incident will be permitted. Democrats on the Judiciary Committee will serve as the “prosecutors”–asking the accuser leading questions and attempting to poke holes in Kavanaugh’s defense. Republicans will be the “defense attorneys”, exploiting inconsistencies in the accuser’s stories, calling up incidents to impugn her integrity and honesty and leading Kavanaugh himself to the answers that they want to hear.
And when all of the testimony wraps up (you can’t really use the term “evidence” here) those that just served as the prosecution, the defense and the judge–will decide the guilt or innocence of Kavanaugh. Except that every single one of them will come to the proceedings with their minds already made up about his guilt or innocence. Not exactly how justice is supposed to be doled out in this country. Although, an actual legal proceeding to determine the veracity of the accusations against Kavanaugh wouldn’t change anything either–since the Court of Public Opinion has already weighed in–without any testimony necessary.
