It’s “Advice & Consent,” Not “Law & Order”

Like a lot of the public rhetoric on the Senate confirmation committee re Supreme Court nominee Brett Kavanaugh, this New York Times column draws much of its terminology and logic around the metaphor of a courtroom. That’s useful since most all of us are familiar with “innocent until proven guilty” and “due process.”

But I must respectfully disagree with the entire premise here that this (or any) Supreme Court nomination committee process is a court—of law or of public opinion. It is a job interview, in which the burden of proof is and has always been entirely on the nominee to prove—NOT his or her innocence of any crimes—but that the nominee is worthy of the appointment. This means it’s on him or her to respond to and explain any questionable things that come to light from anything in the past and for the Senate to determine whether the explanations allow sustained confidence for a proposed appointment to proceed. (This, btw, is the case with any job interview process for any finalist for any job.)

Neither Kavanaugh nor any other nominee has a right to the presumption that he is worthy and entitled to a lifetime appointment to the highest court of the land—as if any citizen bringing information that might suggest otherwise must outrun a rushed hearing process and  “prove” that he isn’t quite so entitled after all. Were this the way the founders intended it, there would be no, and no need for, a Senate confirmation process.

I value and often agree with the work and reasoning of Stephens on many issues. But he’s wrong about this as a matter of long and correct precedent.

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