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.

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