Clinical Law Prof Blog

Editor: Jeffrey R. Baker
Pepperdine University
School of Law

Friday, September 28, 2018

"Advice and Consent" and the Senate's Standards of Evidence

Today, Senator Jeff Flake has said that he is torn and uncertain, beset with doubts, but that without "corroborating evidence" (which is available but which the Judiciary Committee has ignored, alas) he simply cannot vote to oppose the nomination of Brett Kavanaugh. Politically, that's a position, but it's not a legally necessary position. It's a standard he is adopting voluntarily to justify his vote, not reluctantly simply because he has to.
 
The Constitution requires the Senate to give "advice and consent" to a President's nominee. That's the standard, and it's not much. It's whatever the Senate decides it is, and it is, at its heart, political. In criminal cases, prosecutors must prove their case beyond a reasonable doubt. In civil cases, plaintiffs must prove their cases to a preponderance of evidence. In other cases, claimants must prove their cases with clear and convincing evidence.
 
None of those are the standard for the Senate. If they were, we would have seen a trial yesterday, instead of a brutal sham where one witness was interrogated by a prosecutor with fulsome answers and another witness shouted interruptions, evaded straight answers, and railed hysterically against political enemies. It was not a legal proceeding. It was a political proceeding orchestrated for a particular outcome, and that is as the Senate's controlling party designed it, as it is allowed to do by the Constitution.
 
Turning back to Sen. Flake, surely all of the Senators are imagining the standard that will justify their preferred positions, because they can. Who among us wouldn't choose the standard by which we would be judged?
 
Here are some other permissible standards. It may be that the credibility of one witness so outweighs the other that the Senate decides to believe her instead of him. In this case, Dr. Ford was imminently credible, expert, and forthcoming; Judge Kavanaugh was evasive, petulant, hysterical, and imprudent. That's enough to oppose his nomination simply by weighing their credibility (which is actually enough under the preponderance standard).
 
It may be that conscience is a sufficient standard of evidence. Ensuring that Supreme Court Justices assume their seats without lingering questions of character, integrity, trust, substance abuse, and violence is enough to oppose a nomination, especially when there are plenty of other conservative options.
 
In may be that the legitimacy of the Court, independent of the facts of this case, is a sufficient standard. Bald, brutal, partisanship and a profoundly flawed nominee will mark the Court as unreliable for a generation or more. At its heart, the Court only has its legitimacy, its credibility. The rule of law depends on that reliability, so if a nominee reveals himself to be a furious partisan operative, that is enough to oppose his nomination.
 
Of course, the Senate can also consent to whomever a President sends to them, even if it is merely to assure a partisan victory in the short term, even if there are plenty of other options. The Senate can do that under the Constitution.
 
Whether the People can abide it is another question we have yet to answer. Whether we can tolerate it as a Republic is an open question.
 

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