Best Practices for Legal Education

Briana Rosenbaum, my colleague at the University of Tennessee College of Law, has provided the attached discussion questions and notes to her Civil Procedure students for use in a live, online discussion as they watch the hearing today. With her permission, I am sharing this with anyone who finds it helpful to use in a law school class today.

Questions for Consideration for Civil Procedure Class

Professor Briana Rosenbaum 

United States Senate, Committee on the Judiciary

Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 5)

Thursday, September 27, at 10 a.m. (ET)

 

WITNESSES

Panel VI

Professor Christine Blasey Ford, Ph.D.

Palo Alto University

Palo Alto, CA

 

Panel VII

The Honorable Brett M. Kavanaugh

Nominee to Serve as an Associate Justice of the Supreme Court of the United States

Chevy Chase, MD

 

1. What is the role of the Senate (and the Judiciary Committee) in the confirmation process?

Consider:

1. Article II, Section 2, Clause 2: the president has the power to “nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”
2. Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (August 14, 2018)“Usually within a week of the end of hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate. The committee may (1) report the nomination favorably, (2) report it negatively, or (3) make no recommendation at all on the nomination. A report with a negative recommendation or no recommendation permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination.”
3. June 29, 2001 Letter of then-Chair Senator Patrick J. Leahy (D-VT), and then-ranking Member, Senator Orrin G. Hatch (R-UT).States that the Judiciary Committee’s “traditional practice . . . has been to report Supreme Court nominees to the Senate once the Committee has completed its considerations. This has been true even in cases where Supreme Court nominees were opposed by a majority of the Judiciary Committee. We both recognize and have every intention of following the practices and precedents of the committee and the Senate when considering Supreme Court nominees.”
4. Only a simple majority of the full Senators are needed to confirm Supreme Court nominees (prior to Justice Gorsuch, a successful filibuster could be used to effectively require 60 votes to ensure cloture and a vote on the nomination).

 

2. As you are watching the hearing, what roles are the various players taking on: judge, jury, witness, prosecutor, advocate?

Consider:

1. Three Senators now sitting on the Judiciary Committee also sat on the Judiciary Committee when the panel heard Prof. Anita Hill’s testimony in 1991 against the nomination of Supreme Court Justice Clarence Thomas: Republican Sens. Chuck Grassley of Iowa (now the Chair of the Committee), Orrin Hatch of Utah, and Democratic Sen. Patrick Leahy of Vermont.
   1. One of these senators (Hatch) quite famously took on the role of advocate to then-Judge Thomas. He acted as a prosecutor by cross-examining Anita Hill heavily, an advocate, by stating affirmatively that he disbelieved Anita Hill prior to hearing evidence, and even a witness, by offering his own evidence of Anita Hill’s credibility.
   2. The other senators were also subject to criticism, including for how they handled questioning.
2. What have these three Senators, and the other Senators at the hearing, seemed to have learned from the Thomas hearings? What evidence do you see of this?

 

3. What is the “standard of proof” at the hearing? Do you see a “standard” being applied at the hearing?

Consider:

1. Senator Orrin Hatch (Nomination Hearing Transcript, Oct 11, 1991, 29):“I hope that nobody here, either on this panel or in this room is saying that, Judge, you have to prove your innocence. Because I think we have to remember and we have to insist that Anita Hill has the burden of proof or any other challenger, and not you, Judge. The fact of the matter is, the accuser, under our system of jurisprudence and under our system of fairness, would have to prove their case.”
2. Senator Robert Byrd (D, W.Va.)(Executive Session Hearing Transcript, Oct. 15, 1991), “When are Senators going to learn that this proceeding is not being made in a court of law? This is not a civil case; it is not a criminal case wherein there are various standards of doubt, beyond a reasonable doubt, so on and so on. . . . This is a confirmation process, not a court case. We are talking about someone who was nominated for one of the most powerful positions in this country. . . . His decision will affect millions of Americans, black, white, minorities, the majority, women, men, children, in all aspects of living, Social Security, workmen’s compensation, whatever it might be that might come to the Supreme Court of the United States. That one man in such an instance will have more power than 100 Senators, more power in that instance than the President of the United States. This is not a justice of the peace. This is a man who is being nominated to go on the highest court of the land. Give him the benefit of the doubt? He has no particular right to this seat. No individual has a particular right to a Supreme Court seat. Why give him the benefit of the doubt? If there is a doubt, I say resolve it in the interests of our country, its future. Let’s not have a cloud of doubt for someone who will be on the court for many years.”
3. Alan Dershowitz (Harvard) (2018):“The standard for proving a serious sexual allegation must be high. In a criminal case, the evidence must prove the crime beyond a reasonable doubt. “Better ten guilty go free than one innocent be wrongly convicted.” That standard must vary with the consequences to both sides. On university campuses, for example, the standard for proving a charge of sexual assault that could result in expulsion should be close to proof beyond a reasonable doubt, perhaps “clear and convincing evidence.  But it should never be “a mere preponderance of the evidence,” because that means no more than a 51 percent likelihood that the sexual assault occurred. Under that low preponderance standard, 49 out of every 100 people convicted may well be innocent. That is far too high a percentage. What about when the issue is suitability to serve a lifetime appointment on the Supreme Court? The consequences of an erroneous decision are high on all sides. A nominee rejected for a false allegation of sexual assault will suffer grievous reputational and career consequences. But so will the woman whose accusations are deemed untruthful. There is also the consequence of having a Supreme Court justice serve for many years if he was a sexual assailant. On balance, the standard for accepting a serious allegation of sexual assault should be higher than proof by a mere preponderance. It should come close to clear and convincing evidence, especially if the allegation is decades old and the nominee has lived an exemplary life ever since. But senators should cast their votes based on a total assessment of the candidate’s suitability.”
4. Caprice Roberts (Univ. Florida) (2018): “Whether or not there’s conclusive proof of the alleged assault, every senator is entitled to vote yes or no on elevating Kavanaugh from his current position as a federal appeals court judge to the pinnacle of American law based on their individual, subjective assessments of whatever testimony is provided. . . . Kavanaugh’s public hearings, then, and any inquiry now into the accusations against him, are less like a trial and more like a high-stakes job interview — and this job comes with life tenure. The main point of the hearings is to determine the nominee’s fitness for the post. Senators evaluate judicial qualifications, record, demeanor and philosophy. Modern judicial nominees undergo in­cred­ibly thorough vetting in preparation because they know that senators may also explore every aspect of their past. Allegations of sexual misconduct fall well within the scope of relevant considerations. Because guilt or innocence isn’t the issue, but instead fitness for the Supreme Court, the burden of proof isn’t, and shouldn’t be, on Ford, the accuser; it remains on Kavanaugh.”
5. Trey Goudy (R, SC-04) (2018): Since a Supreme Court nominee was accused of “a crime that goes to the heart of your character, I think the American people expect there to be a high evidentiary burden.”
6. Michael Bromwich, lawyer for Dr. Blasey Ford (2018): “Neither Dr. Blasey Ford nor Judge Kavanaugh is on trial. . . The goal should be to develop the relevant facts, not try a case.”

 

4. Who has the burden of proving the assault, or lack thereof, if there is such a burden? Kavanaugh? Blasey Ford? Democrats? Republicans? Someone else?

Consider

1. Who is presenting evidence?
2. Who is speaking first? Last? Is this choice of order meaningful? Note that in criminal and civil trials, the person who has the burden of proof (usually the plaintiff or the prosecutor) is allowed to present their case both first and last.

 

5. What is the role of procedure in the hearing? Should ordinary rules of civil and evidentiary procedure apply?

Consider:

1. The Federal Rules of Civil Procedure and Evidence do not govern congressional hearings, and Congress has not set out a set body of evidentiary or “discovery” rules for such hearings.
2. Instead, procedures are applied case-by-case.
   1. Thomas Hearing: Chairman Joe Biden (who has a law degree) attempted to impose evidence-like procedures on the hearing, including forbidding the use of some hearsay (like FBI Reports containing the statements of Prof. Anita Hill). However, toward the end of the hearing, Senators introduced (without objection) evidence of newspapers with hearsay statements, polygraph tests, and other evidence that would be inadmissible in court.
   2. Kavanaugh Hearing: Chairman Grassley does not have a law degree. It is unclear at the moment what rules will be imposed, if any, on the hearing.

 

 

 

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