Disclaimer: I am not a law student/lawyer, nor do I have any accredited legal expertise that would lend any legal credibility to the statements below.
I know it has been a difficult week for many of my close friends and loved ones (many of them inspiring & powerful survivors themselves); as we the America public bear witness to the blatant display of sexism, victim-shaming, and utter inaptitude by mechanisms of our political system often hidden from our view.
I am referring to the Brett Kavanaugh (henceforth known as BK) hearings! Along with articulate articles around the heroic testimony of Dr. Ford, I have seen many friends/strangers invoke a tone of commentary that typically surrounds a public criminal/civil trial, so I just want to clarify a few things in hopes of better equipping us for conversations with the internet lawyers out there if one so chooses.
This is NOT a criminal prosecution;
rather it is a job interview for a powerful public office position.
(In fact, it was only until 1916 when Wilson nominated Louis Brandies, who was controversial for his opposition to “muckraker” that the 1st public Judiciary hearing occurred, which allowed witness to offer testimonies both in support of and opposition to a candidate)
Legal Presumption of innocence does NOT apply;
Because this is not an active criminal prosecution, BK is not entitled to the “innocent until proven guilty” presumption. None of the parties involved have an obligation to prove anything “beyond a reasonable doubt”, because NO ONE is on trial in the hearings.
“Due Process” does NOT apply;
The term “due process” or procedure due process as interpreted from the 5th amendment, is the legal principle that states the state or gov’t cannot take away your rights/property without legal proceeding. In BK’s confirmation hearings, the gov’t is not trying to take away anything. Rather the hearing is to determine a “yes/no” answer on whether to GRANT upon BK one of the highest legal public position in our country. BK, like any other citizen, reserve no implicit claim to that position of SCJ. Legally speaking, he is not entitled to a ‘fair hearing’ in legal terms.
Laws of Evidence does NOT apply;
This is a senate hearing for a job vacancy! In this hearing, senators are entitled to ask whatever they want to ask to best help them decide on the appointment. Ford nor BK are entitled to any protections generally afforded to fact witnesses who are on trial. Senators who focus on legal principles like direct vs. circumstantial evidence, burden of proof, and witness credibility (all concepts from rules of evidence) aim at distract and hijacking the conversation from the question at hand.
(The republican’s decision to use Rachel Mitchel, a seasoned prosecutor, was an attempt as discrediting Dr.Ford’s memories. A tactics typical to Laws of evidence)
The fallacy that is Lindsey Graham;
In his brilliant tryout for the Jeff Sessions-replacement job, Lindsey Graham calls into question that “there isn’t enough evidence to convict BK”. Lindsey follows the logic that because there is not enough evidence to obtain a warrant or to justify a civil charge against BK that BK therefore SHOULD be confirmed. Graham tries to appeal to our availability heuristic and force a conflation between the standards of a criminal/civil proceeding with the standards of a Judiciary Committee hearing. The senate Judiciary Committee has but one goal, and that is to answer is BK “fit” enough to be the next SCJ. PERIOD.
The Fallacy of “His life has been destroyed!”;
KB’s entire life is not going to be destroyed by this confirmation. His prospect for a promotion to one of the highest offices in the land MIGHT be. Worst case scenario, he remains Federal Judge of the DC Circuit Court, and POTENTIALLY be subject to a subsequent criminal/impeachment process. However, both will have different standards of proof and afford much more legal protection to KB. The lives that have been harmed and will continue to incur damage are those of the powerful women who have come forward at the prospect of unbelievable risk to share their stories with the world.