Jay Bookman

Opinion columnist and blogger with The Atlanta Journal-Constitution, specializing in foreign relations, environmental and technology-related issues

Opinion: Due process is due


We have a time-honored, time-tested pathway out of the nightmare that the Kavanaugh nomination has become, if only we would take it.

It is called “due process.”

Brett Kavanaugh deserves and should get due process. His accusers deserve and should get due process. The American people deserve due process. And every time, in every case, the process that is due to them begins with an honest investigation of basic facts.

None of us knows with any certainty whether Kavanaugh is guilty of the behavior attributed to him. Personally, I do not. I have my thoughts -- by this point, anyone who has followed this story would have them -- but those thoughts amount to an impression, not to a conclusion, and that impression lacks the factual grounding to become the basis of a decision. I need to know more. Senators need to know more. Questions that can be answered -- and there are many -- need to get those answers.

There are reasons to believe the two women who have come forward so far with allegations against Kavanaugh, and there are reasons to disbelieve them as well. There are reasons to believe Kavanaugh’s denials, and reasons to question those denials. Recollections are clouded by booze, by the passage of three decades, by the silence that shame imposes and by the hidden nature of sexual assault. They are then distorted further by the partisan fervor of those involved in the case on both sides. However, the impossibility of getting a clean decisive answer in this situation does not mean that we should abandon efforts to make it as clear as we can.

Unfortunately, while theoretically defending Kavanaugh’s right to due process, the Trump White House and Senate Republicans have been loathe to allow that process to occur. They argue passionately and fervently that these invented allegations are part of an organized smear campaign by liberals, a claim that if true, an FBI investigation would probably confirm. But they refuse to allow the time needed to validate their charge.

Instead, from the Republican Senate we get a three-step square dance that brings us right back to where we started:

“We can’t deny Kavanaugh a seat on the Supreme Court based on such flimsy evidence, and we don’t have time to explore whether additional evidence exists, so our hands our tied: We can’t deny Kavanaugh a seat on the Supreme Court. Time to vote.”

The worst thing that could happen, to Republicans and everyone else, would be to have Kavanaugh confirmed to a lifetime appointment in a hasty process, only to have facts emerge later that force his removal. The time to make those facts emerge, should they exist, is now. That is particularly true of the highly inflammatory charges of alcohol-fueled gang rape raised Sunday evening by attorney Michael Avenatti.

You don’t have to like or respect Avenatti to recognize the grave nature of those charges. And when called for bluffing in the Michael Cohen case, he proved to hold the high cards that he claimed to hold, to Cohen’s detriment.

It’s also important to point out that if it is later proved that Avenatti’s claims were groundless and irresponsible, the consequences might mean the end of his legal career, and under those conditions probably should. That’s a lot to throw away. I’m by no means saying that his allegations are true, but again, for both political and constitutional reasons, it would be extremely reckless for any senator to vote to confirm Kavanaugh until we know a lot more.


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About the Author

Jay Bookman writes about government and politics, with an occasional foray into other aspects of life as time, space and opportunity allow.