The Corner

Law & the Courts

Yes, Process Matters

Whatever one thinks about Judge Kavanaugh’s fitness for the bench, the process by which the allegations against him have been adjudicated has been far from serious. Democrats in Congress sat on Christine Blasey Ford’s allegations for weeks, and they were leaked only after the initial hearing had been completed. As a result of this, Dr. Ford’s allegations were aired and investigated not behind closed doors but in a media coliseum. That sequence exposed both the Ford and Kavanaugh families to harassment, defaming, and threats. Moreover, it made it harder to investigate these claims themselves. This episode has consequences for the individuals involved and broader political norms.

Senators and members of the press attacked the principle of due process — ranging from rhetorical sleights of hand (“it’s just a job interview”) to identity-based denunciation (as when Senator Mazie Hirono called upon “the men of this country” to “just shut up”). Invocations of a “cultural reckoning” displaced rigorous attention to the facts of this particular case. Later, uncorroborated allegations made by anonymous letters and Twitter trolls were treated as breaking news. The resulting political hysteria has made cultural discourse more toxic and impeded the ability of the Senate and the public to weigh what evidence there is. It’s because sexual assault is such a serious issue that we should have rigorous procedural norms for adjudicating sexual-assault accusations. (And the idea that the seriousness of an alleged act should override due-process concerns seems more a principle of the Committee of Public Safety than the Constitution and the common-law tradition.)

Concerns about “process” are often treated as mere tools for partisan maneuvering — and sometimes they are. But process concerns are important, too. At its very base, the rule of law is about process. Process affords a way of adjudicating competing claims in a way that stakeholders from a variety of factions in a society can accept. Blowing up a faith in process makes it so much harder for a diverse society to engage in republican governance. Process helps keep factional competition from becoming outright warfare.

We hear a lot today about a crisis in “liberal democratic” norms. While this concern can sometimes be a bit too apocalyptic, it does point to the deeper dangers of a broader loss of faith in the institutions and cultural practices that make a free society possible. The process of the Kavanaugh confirmation exemplifies this deterioration of norms and points to disturbing trends in the future. A political culture that maximizes toxicity will discourage responsible people from serving in government and further divide its citizens.

Fred Bauer is a writer from New England. His work has been featured in numerous publications, including The Weekly Standard and The Daily Caller. He also blogs at A Certain ...

Most Popular

Politics & Policy

Yes, They Are Coming for Your Guns

At the Democratic-primary debate in Houston last night, Beto O’Rourke formally killed off one of the gun-control movement’s favorite taunts: The famous “Nobody is coming for your guns, wingnut.” Asked bluntly whether he was proposing confiscation, O’Rourke abandoned the disingenuous euphemisms that have ... Read More
White House

Politico Doubles Down on Fake Turnberry Scandal

It's tough to be an investigative reporter. Everybody who feeds you a tip has an axe to grind. Or, alternatively, you find yourself going, "I wonder if . . . ?" You put in your research, you talk to lots of people, you accumulate a huge pile of information, but you still haven't proved your hypothesis. A wise ... Read More

Four Cheers for Incandescent Light Bulbs

It brought me much -- indeed, too much -- joy to hear of the Trump administration's rollback of restrictions on incandescent light bulbs, even if the ban will remain in place. The LED bulbs are terrible. They give off a pitiable, dim, and altogether underwhelming "glow," one that never matched the raw (if ... Read More