What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence

Imagine a job interview in which the candidate is told that a serious accusation has surfaced, that the committee will vote on a deadline whatever the investigators find, and that if he is displeased he may take it up with the cameras. Now imagine that the job is a lifetime seat on the highest court in the land. That is the question the fall of 2018 put to the country.

This post is not about whether any particular allegation was true. It cannot be, and I will not pretend otherwise. It is about the process, and the process is something we can examine from the record without taking anyone's word for anything. My claim is simple: the 2018 Senate fight over Brett Kavanaugh showed how quickly a hearing can abandon the basic rules of fair process, and that lesson belongs to every party, because the next nominee may belong to either one.

The Terms, Defined

point-by-point discipline begins with definitions, so let me define three.

Presumption of innocence. In a criminal trial, a defendant is presumed innocent until the government proves guilt beyond a reasonable doubt. The Supreme Court described the presumption as a basic component of a fair trial in Coffin v. United States (1895), and it has treated it as part of due process ever since.

Due process. The Fifth and Fourteenth Amendments forbid the government from depriving any person of "life, liberty, or property, without due process of law." Due process is the promise that the government will follow fair procedures before it takes something from you.

Advice and consent. Article II, Section 2 gives the President the power to nominate judges and, "by and with the Advice and Consent of the Senate," to appoint them. The Senate decides by simple majority how it will exercise that power. We explored what that phrase was meant to do, and how it has been used, in Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means.

Keep those three terms in view, because the whole debate turns on whether the first two apply to the third.

The Process Record

Here is what the public record shows, and only that.

President Trump announced Judge Kavanaugh's nomination on July 9, 2018. The Senate Judiciary Committee held its public hearings in early September. A letter from Christine Blasey Ford describing an allegation from the early 1980s had reached Senator Dianne Feinstein earlier, in July, and it did not become public until mid-September, after the hearings had ended and while the committee was preparing its vote. Ford and Kavanaugh both testified before the committee on September 27. The committee then voted on September 28 to advance the nomination, 11 to 10, but only after Senator Jeff Flake asked for a short supplemental FBI background check, which the White House authorized and which was limited in time. On October 5, Senator Susan Collins delivered a long floor speech explaining her vote. The Senate confirmed Kavanaugh on October 6, 2018, by a vote of 50 to 48.

Those are the facts that matter for the process, and I will leave the contested ones where they belong, with the people who testified and with the voters who judged them.

The Steelman: A Confirmation Is Not a Trial

Here is the strongest case for the way the Senate handled it, and it deserves a fair hearing. A Supreme Court confirmation is not a criminal trial. Nobody is being sent to prison. The Constitution gives the Senate the power to advise and consent, and nothing requires it to apply the standard of proof used in a courtroom. Senators are entitled to weigh a nominee's whole record, his temperament and his credibility, and they are entitled to ask whether a person who is accused of serious misconduct, even without proof, has the judgment to sit on the Court. A lifetime appointment is a position of public trust, and the burden of showing that a candidate deserves that trust belongs to the candidate, not to the Senate. Put plainly: "You are not entitled to this job" is not the same sentence as "You are guilty of a crime."

That is a fair argument, and I do not think the other side should be caricatured. Now the answer, in three points.

One: a trial and a job interview use different rules, but they share a floor. Even in a job interview, nobody thinks it is acceptable to decide on the basis of an accusation the candidate has never been allowed to answer, or to hold the evidence back until the last day. Fairness of process does not require a criminal standard. It requires notice, an opportunity to respond, a reasonable investigation, and a decision based on what is actually known. Those are not courtroom inventions. They are older than the Fifth Amendment. They are the common sense of any institution that wants to be believed.

Two: when the stakes are a person's reputation and career, "he has not proved his innocence" is a corrupting standard. The presumption of innocence is not only a legal rule. It is a civic habit. It teaches a free people that an accusation is the start of an inquiry and not the end of one, and that the person making a claim bears the burden of making it credible. A society that gives up the habit in its politics will find it harder to keep in its courts. Jurors are drawn from the public. They bring the culture with them.

Three: the rule has to work in both directions or it is not a rule. If you would not accept a process in which a Democratic nominee were tried by a Republican committee under these conditions, you should not accept it for a Republican one. The rules a party writes for its opponents have a way of becoming the rules written for its own side. That is the whole argument for neutral procedure.

What a Fair Process Would Have Looked Like

I want to be specific, because a complaint without an alternative is only a mood.

A fair process starts with the committee's handling of information. When a serious allegation reaches a senator, the committee should have a protocol, agreed in advance and applied the same way no matter who is nominated, for who sees the information, how it is shared with the nominee, and when it is investigated. If the matter comes up in July and becomes public in September, something has gone wrong with the protocol, whichever senators are responsible.

It continues with investigation. The committee's job is to find out what can be found out. A supplemental background check, like the one the FBI performed in the week after the committee vote, is the kind of thing that should be routine, not the product of a last-minute negotiation among senators. The scope of that check was itself disputed, and partisans on both sides argued about it. A neutral rule would have settled the question before anyone had a nominee to fight over.

Then comes the hearing itself. The nominee and the accuser should each be heard, in a setting that treats the witnesses with respect. The senators who question them should be there to find facts. A hearing used to stage a performance for the evening news has stopped being a hearing.

Finally, the vote. Senators have a right to decide how much weight to give what they have heard, and that is the point of the process. Senator Collins, in her October 5 floor speech, explained that she had applied a standard to the allegations, whether the claims met the "more likely than not" test, and concluded that they did not. You can quarrel with her conclusion. You cannot quarrel with the fact that she explained her standard in public, on the record, where her voters could judge it. That is what accountable decision-making looks like.

Why Both Parties Should Care

The honest conservative should be uncomfortable with one more thing. The 2018 fight did not begin in 2018. Its ancestors include the 1987 Bork hearings, which we covered in The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign, where a nominee's record was turned into a campaign, and the long escalation that followed: the filibuster fights, the 2013 and 2017 rule changes covered in The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended, and the election-year vacancies of 2016 and 2020. Each side can tell a story in which the other started it.

Here is why that matters for my argument. If you only object to unfair procedure when your opponent uses it, you do not object to unfair procedure. You object to losing. The way to tell the difference is to write down the rule you want before you know who benefits.

That is also a reason conservatives should resist the temptation to treat every procedural grievance as proof of a conspiracy. The Senate has done many things badly, and it has done them to nominees of both parties. A critique that sounds like partisan grievance persuades nobody who is not already persuaded. A critique that insists on a neutral protocol, and that would say the same thing if the nominee's name were different, persuades everyone who is willing to listen.

The Presumption as a Civic Habit

Let me close the argument by returning to the idea at its center, because it is easy to say "innocent until proven guilty" and harder to mean it.

The presumption of innocence has a long ancestry in the Anglo-American tradition. It is not in the text of the Constitution as such. It is a principle that grew out of the common law and that the courts read into the guarantee of due process. The Founders knew the alternative, because they had lived under it: a government that could accuse a man in secret and decide his fate on the basis of whatever reached the ruler's ear. The Sixth Amendment's guarantees that the accused shall "be informed of the nature and cause of the accusation" and "be confronted with the witnesses against him" are the result of that experience. Those clauses apply to criminal prosecutions, and a Senate hearing is not a prosecution, but the lesson behind them applies to any institution that wields power over a person's name.

The lesson is that fairness has a cost, and that the cost is paid by the side that would prefer to win quickly. A process that asks whether the accused had a chance to answer will sometimes frustrate a majority that is sure it is right. That is exactly the point. A majority sure it is right is the case for which the procedure was designed.

You can hold both of these thoughts at once. You can believe that serious allegations must be taken seriously and investigated seriously, and that the accused is entitled to a fair process in which to answer them. Believing the first without the second gives you a mob. Believing the second without the first gives you a cover-up. A mature civic culture does both. The 2018 fight is a reminder of what happens when neither side bothers.

What the Senate Can Fix

The remedies are not mysterious.

• Adopt a written protocol for handling allegations against a nominee, applied identically to every nominee, covering who is told what and when.
• Treat the background check as routine, with scope and time limits set before the hearings begin and not renegotiated at the last minute.
• Separate the fact-finding from the show. A closed session for sensitive testimony, with a full public record after, would serve both the witnesses and the public better than a televised confrontation.
• State your standard. Every senator who votes should be willing to say what standard of proof or persuasion he applied, as Senator Collins did.

None of these needs a constitutional amendment. They need a Senate that cares more about a fair process than a fast one. For a reminder of what the confirmation process is supposed to do in the larger design, and of how often the two branches have disagreed over it, read When the Senate and the President Disagree on Judges, History Shows What Follows and The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench.

The case in brief

1. A Senate confirmation is not a criminal trial, and the Senate may weigh credibility and temperament, but fairness of process, meaning notice, a chance to respond, a real investigation and a stated standard, applies to every institution that decides a person's name and career.
2. The 2018 record shows the opposite: a serious allegation held for weeks, an allegation that became public only after the committee's hearings had ended, and a supplemental background check arranged by negotiation instead of protocol.
3. The presumption of innocence is a civic habit as well as a legal rule, and a society that abandons it in politics will have a harder time keeping it in court.
4. A rule you would reject for your own nominee is not a rule, and both parties wrote the rules that produced 2018.
5. The fix is a written protocol, a routine background check, a closed session for sensitive testimony and a stated standard from every senator who votes.

What you can do: look up the members of the Senate Judiciary Committee at your senators and ask your own senators, in writing, whether they will support a standing protocol for handling allegations against any future nominee, whichever party names that nominee.