It’s not surprising that each side of the Christine Blasey Ford/Brett Kavanaugh he said/she said dispute is seeking different procedures. This is an adversarial high-stakes confrontation between a male Supreme Court justice nominee and his female accuser. Reasonable people could disagree about the appropriate procedural steps, but there are basic rules that must be followed for hearings of this kind to be fair.
Rule 1: No one should presume that either party is lying or telling the truth. There is no gender-based gene for truth telling. Some women tell the truth; some women lie. Some men tell the truth; some men lie. Without hearing any evidence under oath, and subject to cross-examination, no reasonable person should declare Ford, a psychology professor, to be a victim or federal judge Kavanaugh to be a perpetrator. Nor should anybody declare the opposite. The issue is an evidentiary one and evidence must be heard and subject to rigorous cross-examination, preferably by an experienced and sensitive female litigator.
Rule 2: The accuser must always testify first, and be subject to cross examination. The accused must then be allowed to respond to the accusation and also be subject to cross-examination. In the bad old days of the Inquisition, the accused was required to testify first without even knowing the grounds of the accusation. The rule of law in the United States had always been the opposite. The accuser accuses first and the accused then has an opportunity to respond to all accusations.
Rule 3: Political considerations should not enter into he said/she said decision making. Investigators, including FBI background checkers, must take as much time as necessary to get as close to the truth as possible, without regard to whether this helps the Democrats or the Republican or particular candidates. There should be no deadlines designed to influence the mid-term elections. Both sides should be given as much time as is reasonable to make their cases and no decision should be made until each side has had that opportunity, which should include the power to subpoena witnesses.
Rule 4: Everybody must be willing to accept the “shoe on the other foot test.” The same rules that would apply if a liberal Democrat had been nominated by a liberal Democratic president must be applied to a conservative Republican candidate nominated by a Republican president. There can’t be one rule for the left and a different one for the right. The rule of law must apply equally in all situations.
Rule 5: 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.
Rule 6: No material information should be withheld from either side. Each side should have a full opportunity to examine inculpatory, exculpatory or otherwise relevant material that may have an impact on the truth-finding process.
Doubts should be resolved in favor of disclosure because Ford came forward voluntarily with her accusation, thus waiving any right to privacy. Kavanaugh too has waived his privacy rights by being a candidate for the Supreme Court, and any information relevant to his activities, even 36 years ago, should be disclosed.
If these neutral rules are followed, the process may end up being fair to both sides. All Americans have a stake in the fairness of this process and no one should compromise the basic rules of fairness and due process that have long been the hallmarks of the rule of law.
Alan M. Dershowitz is professor of law emeritus at Harvard Law School and author of “The Case Against Impeaching Trump.”