[ad_1]
The Senate lacks guidelines or rules to evaluate the testimonials expected today from Supreme Court nominee Brett M. Kavanaugh, and one of the women who accused her of 39 Sexual assault, Christine Blasey Ford. This is largely about politics.
But there are standards of evidence inherited from the justice system – the preponderance of evidence, clear and convincing evidence or beyond a reasonable doubt. A debate has also taken place, alongside the challenge of the allegations themselves, on the adequacy of these principles and on the question of who bears the burden of proving what. In a hyperpartisan climate, opinions tend to be divided according to pre-existing positions on the candidate.
"There are no clear rules on the burden of proof in a congressional investigation," said David J. Leviss, a Washington-based lawyer with O'Melveny & Myers, who has extensive experience investigating in the Senate .
Instead, he said, lawmakers tend to rely on a "basic standard based on their own barometers. If I had to give it a name, maybe the norm shocks the sensibilities. This is a low standard of conduct for what does not seem right and they feel the public will agree with them. "
Legislators may want more clarity about what may have happened between witnesses, said Leviss, but "the main purpose of this process is always to assess its ability to confirm at the Supreme Court, which is finally a different question. that he had committed a crime 36 years ago.
"I make this distinction because I very much doubt that we are leaving Thursday with sufficient clarity to meet all the standards of evidence applicable to civil or criminal litigation," added Leviss. "If that is the goal, the president [Charles E.] Grassley puts it forward, it will be difficult. "
The distinction goes to the heart of what separates radically different schools from the way Thursday's hearings should be framed. One of the ways to understand the audience is "similar to a procedure in the criminal justice system," said Ilya Somin, a law professor at George Mason University. The other is that it's like "a job interview".
The difference is important because criminal proceedings would impose on the accuser the burden of proof, "perhaps even having to prove his claims beyond a reasonable doubt," Somin said, while an interview hiring would require Kavanaugh to prove himself.
A number of Democrats have adopted the idea that it is Kavanaugh's responsibility to promote. Senator Christopher A. Coons of Delaware told MSNBC this week that "it is Judge Kavanaugh who is asking for a lifetime appointment to the Supreme Court and who, in my opinion, now bears the burden of refute these allegations.
The statement led conservative observers to complain of a "kangaroo court" in which the presumption of innocence is in doubt. But the maxim of "innocent until proven otherwise" is inscribed in the American legal tradition as a standard aimed at protecting people accused of a crime.
"It is not a question of whether or not he should be sentenced," Senator Kirsten Gillibrand (D-N.Y.) Said Wednesday in the Senate. "The question is whether he has the privilege – the privilege – of sitting in the highest court in the land for life. This is not a court. This is an interview of hiring.
The mere fact that the hearing is not a criminal trial does not make it a simple interview, writes Adam J. White, a researcher at the Hoover Institution and director of the Center for Administration Studies at the Antonin Scalia Act from George Mason University. School, in the weekly standard. Senators, in exercising the duty to provide advice and consent, also decide what type of evidence is credible, and what type of claims should be grounds for blocking an application. He wrote that "allowing a late and unproven charge to stop a Supreme Court appointment will immediately create incentives that will undermine the Senate's confirmation process in future appointments."
Robert MacCoun, professor of law and psychology at Stanford, does not understand why each party has to bear the burden of proof alone. Putting the burden on the witnesses may discourage their participation, he said, while placing it on candidates may deter qualified individuals from entering the public service. Situations in which witnesses share the burden of proof, he adds, create an implicit standard of "preponderance of evidence", common in civil cases where each party presents more credible and convincing material than the other. ;other.
The appearance of credibility is the most important factor in all these situations, said Leviss, the lawyer who participated in congressional investigations on topics ranging from bankruptcy to food security.
And establishing credibility often starts well before a hearing or trial.
It became apparent this week, Kavanaugh, currently US Court of Appeals Judge for the Washington Circuit, participated in an interview with Fox News – the first time that a candidate for the court Supreme said – "I have never sexually assaulted anyone, whether in high school or anywhere else". The focus on issues of individual character was also evident in his description of his youth as being dominated by school and service, at odds with the memories of others.
The issue of personal credibility was also paramount in the opening statements made by both witnesses on Wednesday. Kavanaugh will speak Thursday of a "grotesque and obvious character assassination", while Ford will offer insights into his personal story and quote his "civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. Kavanaugh, when he was 17 and she was 15, fumbled, turned against her, grabbed her to take off her clothes and placed her hand on her mouth when she tried to scream.
The statements do not have much in common. Yet they both denounce political motives.
Kavanaugh, "As I told the commission the last time I appeared before you, a federal judge must be independent, not influenced by public or political pressure."
Ford: "I have been accused of acting for partisan political reasons. Those who say that do not know me. I am a fiercely independent person and I am not a pawn.
This may be true for the witnesses, but the policy will dictate how the public weighs their claims, predicted Somin from George Mason's law school Antonin Scalia. In the annihilation between analogy with criminal justice and the analogy with the job interview, "the one you adopt seems strongly correlated with your political views," he said. Somin, a libertarian whose expertise combines constitutional law and popular political participation. "The consequences are that very few people, in my opinion, are trying to objectively evaluate the evidence."
Unless a definitive piece of evidence emerges, a large part of the country will believe that the conclusion of the process, whatever its conclusion, is illegitimate, he said.
[ad_2]
Source link
