Alan Keyes
Kavanaugh: Senate should vote forthwith
Alan Keyes notes judge's 6th Amendment right to confront accuser
By Alan Keyes
September 23, 2018

The U.S. Senate should move ahead with the vote on Judge Brett Kavanaugh's nomination to the Supreme Court. Even if his accuser were willing to testify, the vote would be warranted. Today's reports suggest that she is not. This makes taking the vote even more appropriate.

After extensive hearings and the release of an unprecedented flood of documents from Judge Kavanaugh's career, on and off the bench, the timing of the accusation reeks like a bag of political dirty tricks. It's a bedrock principle of American law, explicitly reflected in the Constitution's Sixth Amendment, that the accused "shall enjoy the be confronted with the witnesses against him."

But given circumstances that greatly affect the integrity of our constitutional and legal institutions, members of the U.S. Senate also have the right to look this particular witness in the eye to judge the sincerity of her long-postponed pursuit of justice. Government by character assassination, in and of itself, inevitably corrodes good administration. But when the selection of one of the highest positions in the government is at stake, such an attempted assassination is an attack done on the citizen body, and on the Constitution authorized by their voice.

As things stand, the accuser's unwillingness to testify sharpens the suspicion that such an attack is underway. The fact that an accuser can muster the courage to do so usually weighs at once in their favor. It makes sense that the failure to do so has to weigh against them. Moreover, their absence deprives both the accused and the grand jurors who must evaluate the charge (in this case, the members of the U.S. Senate), of the opportunity to scrutinize or question the accuser. In effect, it prevents even a cursory test of possible truthfulness. Someone unwilling to bear witness cannot rightly demand that others believe what they are, in effect, unwilling personally to attest.

Trial by second-hand character assassination thus undermines the jury system. For that system to function, human contact and evaluation are essential. Taken all-in-all, events so far raise a serious question about whether the person or persons making use of the accusation intended all along to attack the confirmation process. If so, their actions amount to an attack on the Constitution itself, warranting the impeachment and removal of any sworn U.S. official involved in it.

That may startle people who disregard the oaths sworn by all who take up office under the United States. U.S. senators, for example, swear or affirm that they will "support and defend the Constitution." Knowingly subverting the confirmation process by sponsoring specious attacks on nominees self-evidently violates this oath. Sen. Dianne Feinstein officially sponsored the accusation against Judge Brett Kavanaugh. If she did so without ascertaining the sincerity of the accuser and her willingness personally to bear witness to the truth of the accusation, it was a failure of due diligence.

But if she knew that the accuser was infirm in her resolve and would not confront the accused as due process requires, then bringing the accusation forward may have been a ploy, intended to delay the constitutional process, or break it down entirely. Be that as it may (and GOP leaders ought to ponder its implications seriously), it would be a serious breach of due process for senators to deprive Judge Kavanaugh of the opportunity to serve the nation on the strength of such an infirm accusation. Any senator willing to do so sacrifices the public good, especially when the accuser is unwilling to sacrifice in order to present the accusation in the manner constitutional justice requires.

These days, demagogues encourage Americans to think of justice as an entitlement, which they must simply demand. In fact, it is a responsibility, which they must first of all choose to serve. Otherwise, under a government of, by, and for the people, justice is unlikely to exist. As with all God-endowed unalienable rights, action is necessary, or right will not be done. The GOP offers Brett Kavanaugh's accuser the chance to testify. If she does, she might influence the vote on his nomination. Her failure to do so should likewise influence it. Either way, the nation as a whole deserves justice, as well – a thought too often forgotten by the self-serving political leaders so much in evidence in these parlous times.

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© Alan Keyes


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Alan Keyes

Dr. Keyes holds the distinction of being the only person ever to run against Barack Obama in a truly contested election – featuring authentic moral conservatism vs. progressive liberalism – when they challenged each other for the open U.S. Senate seat from Illinois in 2004... (more)


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