On Thursday, The New York Times published an opinion piece by former Obama White House lawyer Kate Shaw arguing that traditional due process protections such as “the burden of proof beyond a reasonable doubt; the presumption of innocence; [and] the right to confront and respond to an accuser” are not necessary for the purposes of determining if Brett Kavanaugh sexually assaulted Christine Blasely Ford more than 35 years ago or whether he should serve on the Supreme Court.
Instead, Shaw posited that only a “credible allegation” of misconduct informed by “politics” and various ideological considerations is needed to determine Kavanaugh’s (or any other potential nominee’s) guilt and disqualify him from the position. Although the Times’s description of Shaw portrays her as a simple law professor giving an expert legal opinion, it does not mention her connections to the Obama White House or her marriage to liberal MSNBC host Chris Hayes.
Shaw’s piece — titled "How Strong Does the Evidence Against Kavanaugh Need to Be?" — began answering its chief question by laying out what should not factor into any determination of Kavanaugh’s guilt:
“It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.” emphasis added
So if due process traditions should not inform how Senators evaluate the sexual assault allegations against Kavanaugh, what did Shaw think should guide their decision-making? In a word — “politics”:
“What matters here isn’t law as much as politics — though not (or not just) partisan politics. Confirmation hearings are also about constitutional politics — the debate, involving both institutions of government and the polity, about what the Constitution means and requires.
“So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court? The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices).” emphasis added
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This is a pretty stunning admission for a law professor to make. Not only did Shaw argue that her own profession’s primary factfinding mode is unnecessary for figuring out whether accusations of serious criminal conduct are true, she openly said that nakedly political considerations — including Trump’s popularity and Kavanaugh’s potential ideological impact on the Supreme Court — should help determine whether Ford’s claim of attempted rape is true. Shaw’s epistemological approach here thusly resembles that of a Bolshevik commissar far more closely than a dispassionate lawyer or legal expert.
Shaw continued her piece by arguing that because past accusations of criminal conduct (Douglas Ginsburg’s reported marijuana use) or political extremism (“far right” Robert Bork) have derailed nominations before, there is no reason why Kavanaugh’s nomination should not go down in flames too:
“These allegations weren’t tested with the rigor that would have attached to judicial proceedings; neither evidence nor testimony (where it was given — Judge Ginsburg withdrew before testifying) was subject to the sort of adversarial testing that would occur in a court of law. But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.” emphasis added
Immediately following this point, Shaw made yet another surprising statement for a presumptively neutral legal scholar:
“This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.” emphasis added
In other words, despite assuming that Ford’s “credible allegations” should be treated as fact for all practical purposes, the law professor does not believe that they would even hold up in a civil liability case. This is significant because the standard of proof for civil cases is generally limited to a claimant needing to demonstrate a “preponderance of evidence” in his or her favor (i.e. a more than 50% chance that the accused is guilty). If Shaw doesn’t think that Ford’s accusations could pass such a low evidentiary threshold in court, how does she expect any reasonable person to take her or her liberal compatriots’ unquestioning belief of Ford seriously?
Shaw concluded her piece by imploring the Senate to reject Kavanaugh’s nomination if they find him to be a threat to “women’s liberty and equality” and insisted that this was necessary to maintain the Supreme Court’s perception of governmental legitimacy. Shaw did not consider whether Supreme Court nominees being voted down based on purely political considerations and unsupported last-minute accusations of sex crimes would affect some Americans’ perception of the high court’s legitimacy.
Shaw’s full NYT opinion piece can be read at this archived link or the original link.
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