In recent weeks, debate surrounding the confirmation of Justice Kavanaugh has brought to the fore several important legal considerations. The Senate hearing that considered the allegations made by Doctor Ford against now-Justice Kavanaugh was devoid of due process. Currently, Senate hearings are exempt from due process because they are not criminal trials. But when these hearings become criminal investigations which can uncover information leading to criminal trials, or outright mirror or pre-trials or criminal trials in style and substance, they should be held to the standards of due process.
The term “due process” is mentioned twice in the Constitution—once in the Fifth Amendment and again in the Fourteenth. But the substance of due process, or what it actually entails, is enumerated in the Sixth Amendment. It reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
In plain English, the Sixth Amendment guarantees the following rights to defendants in criminal trials:
- Right to a speedy and public trial
- Right to trial by an impartial jury
- Right to be informed of criminal charges
- Right to confront witnesses
- Right to compel witnesses to appear in court
- Right to assistance of counsel
It is tempting to take these rights for granted, but hard to imagine what our justice system would look like if devoid of these guarantees. To emphasize their importance, a narration of the recent Supreme Court confirmation hearing will be given, with particular emphasis on how violations of the Sixth Amendment created an unnecessarily grueling and polarizing process.
Dr. Ford accused Judge Kavanaugh of sexually assaulting her at a party when they were both in high school. Dr Ford claims Judge Kavanaugh pushed her into a room and covered her mouth as he “grinded against” her and groped her. Dr Ford shared these details with her Congresswoman, Anna Eshoo in the form of a letter. Congresswoman Anna Eshoo forwarded the letter to California Senator Dianne Feinstein, also the Ranking Member of the Senate Judiciary Committee. Senator Feinstein held onto the letter and did not act upon the information it offered, later explaining that she had done so according to Dr. Ford’s wishes for privacy. Had the Sixth Amendment been followed in this case, Dr. Ford, Congresswoman Eshoo, or Senator Feinstein would have been compelled to share the accusations in the letter with justice Kavanaugh, informing him of the charges made against him in a timely and transparent manner. Instead, the letter was withheld from the public and the accused for more than two months, giving the “prosecution” potential unfair advantages and encroaching the defendant’s right to be informed and to defend himself.
The letter was sent to the Federal Bureau of Investigation (FBI) by Senator Feinstein and subsequently leaked to the public. This created a wave of unnecessary negative speculation around Dr. Ford and Justice Kavanaugh. Pictures circulated the internet claiming to depict Dr. Ford drunk and naked on a park bench, and there were stories of Justice Kavanaugh assaulting women on private boat excursions. The publicity firestorm that ensued after the letter was made public is a direct result of failure to guarantee a speedy and public trial. The Senate Judiciary Committee waited ten days to hold a hearing on the matter. While this may not seem lengthy for the courts, it is important to remember that details of the case had already been made public. The purpose of ensuring a speedy and public trial is to leave less room for commentators, conspiracy theorists, and other dubious sources to promulgate false or slanderous information which could potentially impact the case. In criminal trials, this phenomenon is known as pre-trial adverse publicity. Because the First Amendment guarantees freedom of speech and of press, there is no way to abolish adverse publicity. Nevertheless, a solid effort can be made to reduce its potency by proceeding to trial as soon as possible.
When Dr. Ford and Justice Kavanaugh appeared separately before the Senate Judiciary Committee, what took place can best be described as a political spectacle and sadly, an investigative fiasco. The Sixth Amendment ensures the right to an impartial jury to grant both the accuser and the accused equal recognition. It selects those to determine the truth who possess no preconceived notion of what the truth is. The Senate Judiciary Committee is, by structure, not an impartial organization. It is a committee of twenty one members, eleven of which are Republican and ten, Democrats. Although the Committee’s purpose—providing advice and consent—is supposedly impartial, the polarization of domestic politics makes it highly unlikely that its members base their counsel on unbiased perspectives and uniform parameters. In the confirmation hearing of Justice Kavanaugh, members of the Senate Judiciary Committee played a dual role as advocates of their narrative and judges of the truth. It is inherently contradictory to assign the responsibility of persuasion and determination to the same unit. One who persuades another what the truth is has no business in making a final determination, and one who makes the final determination has no place in persuading others. The glaring partiality of the Senate Judiciary Committee transformed the hearing from a pursuit of truth into a blame game. Nothing could be more counterproductive for obtaining properly derived facts and conclusions.
One of the most frustrating moments in the confirmation hearing is when Mark Judge, friend of Justice Kavanaugh and alleged witness to the sexual assault incident involving Dr. Ford, was not compelled to testify before the Senate Judiciary Committee. Being the only witness named by Dr. Ford, as well as a close friend of Justice Kavanaugh, Mark Judge’s testimony was critical. In a court of law, the Sixth Amendment compels witnesses to appear before the court. To this end, subpoenas can be issued, asking individuals to give testimony or provide evidence. The Senate Judiciary Committee has no authority to compel witnesses to testify or give evidence. The absence of Mark Judge’s testimony created a crippling obstacle in the pursuit of truth. Had the Sixth Amendment been extended to the confirmation hearing, Mark justice would be compelled to share his side of the story, offering a crucial piece of evidence that could have likely shifted the tide to one side definitively.
In the questioning phase of the hearings, Dr. Ford and Justice Kavanaugh were both asked many eyebrow-raising questions. The Republican Senators on the Judiciary Committee hired Rachel Mitchell, an attorney from Arizona, to question Dr. Ford. The questions asked by Ms. Mitchell were comparable to those asked during a trial in both style and substance. It was apparent that Ms. Mitchell was attempting to erode the credibility of Dr. Ford’s testimony. There is nothing wrong with such a practice in a courtroom. In a court of law, attorneys will often try to expose and exploit weaknesses in the opposing party’s testimonies. But the difference is that the accuser, accused, and witnesses have the right to the counsel of an attorney. The Framers of the Constitution understood that ordinary citizens cannot be expected to proficiently navigate through the complex web of laws. Because of this, they are entitled to a guide—someone who is trained to deal with the law. Although Dr. Ford was seated in between her attorneys during the hearing and did occasionally converse with them in between or during questions, she did not receive the full right to counsel. Her attorneys could not object to certain questions, a practice commonly used by attorneys in court to protect their clients.
The questions asked od Justice Kavanaugh were equally questionable. Several times during the hearing, Justice Kavanaugh was directly asked whether or not he committed the assault. In a court of law, the defendant would not be compelled to answer such a question. But before the Senate Judiciary Committee, Kavanaugh had little choice. The law prohibits prosecutors from using the defendant’s unwillingness to testify against the defendant. In other words, a reluctance to testify on the part of the defendant cannot be used to presume guilt. But this rule does not exist in Senate hearings. Given the immense publicity of the event, and lack of right to counsel, Kavanaugh answered these objectionable questions. With regards to his calendar and yearbook, Justice Kavanaugh did not have the assistance of an attorney who could question the relevance and general validity of the questions pertaining to these paper documents.
From a broader perspective, incorporating the Sixth Amendment into Senate hearings is pertinent to the changing nature of these hearings. Specifically, that Senate hearings have become increasingly public over the years. Throughout most of American history, Senate hearings were conducted behind closed doors. After the Hugo Black controversy of 1937, the Senate decided to publicize hearings with the hopes of providing more thorough scrutiny. In 1955, one year after Brown v. Board of Education, the confirmation hearing of John Marshall Harlan II caused Americans to recognize the increasing role the Supreme Court played in private life. The publicization of hearings placed nominees in a tough position. If they were asked about a certain alleged scandal and did not answer, the damage to their public image and reputation was irreversible. If they did answer, they could either incriminate themselves or give way to more probing questions. This cycle of increasing intensity leaves nominees with little recourse. If the Sixth Amendment is rigorously applied to criminal trials, the overwhelming majority of which are unknown to the public, it should be applied with even more sincerity to public hearings.
It is not only the element of publicity that warrants application of the Sixth Amendment. Senate hearings have become more and more like pre-trial police questioning sessions—namely that questions asked during Senate hearings have gained potential to lead to criminal trials. In the case of Dr. Ford and Justice Kavanaugh, had Dr. Ford admitted that she fabricated her testimony, or Justice Kavanaugh that he did indeed sexually assault Dr. Ford, it could be likely that their answers would give way to actual charges. Senate hearings have departed from narrowly questioning nominees on their merit and professional practices. Instead, these hearings have extended into the realm of probing for potential crimes. The changing scope of questioning demands that the coverage of rules and protections be changed as well.
The extension of the Sixth Amendment to Senate hearings is mandatory. The confirmation of Justice Kavanaugh has sufficiently demonstrated that devoid of the Sixth Amendment, Senate hearings can quickly transform into unconstitutionally punitive processes. The denial of a speedy and public “trial”, impartial jury, compulsion of witnesses, and assistance of counsel turned the confirmation hearing of Justice Kavanaugh into a bitter spectacle which is sure to leave a scar on American collective memory. Beyond this case, the Sixth Amendment should be applied to Senate hearings because of their public nature and tendency to probe beyond professional qualifications and into personal integrity.