The Kavanaugh-Ford hearing last week might have “riveted” the nation and boosted cable TV ratings, but it showed graphically why congressional hearings should not be compared to courtroom proceedings. They make for good viewing but bad truth-finding.
The “take-aways” from the day-long session were everywhere and from everyone. Cable news pundits tripped over themselves offering their opinions on who was telling the truth, who was lying, who was credible and who wasn’t. Most viewed Dr. Ford sympathetically; but no one dared criticize her, notwithstanding the many and often glaring lapses in her memory even regarding recent events.
Public opinion polls quickly appeared; supposedly accurate reflections of how the public-at-large viewed the proceedings. Members of Congress quickly weighed in, opining as to the veracity of one witness over the other and offering as fact their personal impressions of how federal investigative agencies such as the FBI conduct investigations.
But what did the hearing actually reveal? Did the process lend itself to coming even close to establishing with any degree of certainty what the reality is regarding what happened on a summer day some 36 years ago? The answer is, no, it did not; but the process of a Senate hearing is not meant to be (and was never intended to be) a full and robust search for the truth in the same sense for which a criminal trial is designed. A confirmation hearing, at least to this point in our history, is supposed simply to provide a public forum by which, and through questioning a nominee (and sometimes other witnesses), Senators are able to gauge the nominee’s fitness for the specific position in government for which the president has nominated him or her.
Certainly, there are elements a confirmation hearing and a courtroom trial have in common; most notably, that basic rules of fairness and decency apply, and that witnesses are placed under oath and subject to legal penalties for intentionally lying during the proceeding. But the myriad rules that govern a federal (or state) criminal or civil trial, designed to protect the rights of an accused and to allow for a robust search for the truth in a consistent and fair manner, do not apply to a confirmation hearing. Nor should they.
The end game for a judicial trial and a confirmation hearing are quite different. Yet, there is a growing tendency to conflate the two, and thereby jump to a conclusion following a confirmation hearing that “guilt” or “innocence” has been revealed, as if a jury has rendered its verdict after receiving evidence and hearing witnesses subject to cross-examination to test their credibility and the veracity of their testimony.
There is no judge in a Senate hearing as there is in a trial; no individual to preside over the proceedings in an impartial manner and to ensure established precedents are followed by both sides. The chairman of a Senate committee, whether Republican or Democrat, is not an impartial arbiter and should neither be viewed as being one nor criticized for not behaving as one.
The fallacy of conflating last week’s Kavanaugh-Ford hearing with a judicial search for the truth was nowhere more apparent than in the decision by the Republican majority to permit questioning of Dr. Ford by an outside lawyer. The limitations placed on the outside counsel by the regular-order rules according to which Senators question witnesses in five-minute blocks of time and alternating religiously from one side to the other, made it impossible for the lawyer to question the witness in a coherent, strategic manner that might provide for the committee members to gain real insight into her credibility and veracity.
I saw such differences between Senate proceedings and actual trials first hand when I served as an impeachment manager in the 1999 Senate trial of President Clinton following his impeachment by the House; but that’s another story.
It is important to bear in mind that at last week’s Senate hearing there were no witnesses to corroborate or undermine the testimony of either Ms. Ford or Judge Kavanaugh, as there almost always are in criminal trials. Thus, the Senators were left to decide the question before them – is this nominee fit for the office to which he has been nominated by the President – based on incomplete and fractured evidence. This is, however, the essential nature of the confirmation process; and it is consummately the responsibility of each of the Senators to perform that duty based on those hearings and their other study and research.
Calls by Democrat Senators (and Jeff Flake) for ever more and further investigation and a more expansive search for the truth as to events long-ago concluded, which could be considered legitimate if those same Senators were licensed lawyers engaged in a real trial, are misplaced and disingenuous. But then again, this is politics.