Brett Kavanaugh’s path to the Supreme Court has had many dramatic twists and turns, especially as multiple sexual assault allegations have emerged. After tense negotiations, his first accuser, Christine Blasely Ford, is scheduled to testify before the Senate Judiciary Committee on Thursday. Morning Edition’s Joe Mathieu spoke with WGBH Legal Analyst and Northeastern Law Professor Daniel Medwed about the implications of her testimony for Kavanaugh’s nomination. The following transcript has been edited for clarity.
Joe Mathieu: Developments in this whole process seem to change moment by moment. But as of now it does look like both Dr. Ford and Judge Kavanaugh will appear before the Senate Judiciary Committee later this week. What are some of the sticking points from your view here concerning the format for the hearing? There's been a lot of questions about that.
Daniel Medwed: Sure. There seems to be this high level clash between Ford's desire not to be put on trial, not to be attacked like Anita Hill was back in 1991, and Kavanaugh's demand, essentially, for procedural protections, and that high level battle has led to some lower level skirmishes. Should the hearing be in public or in private? What about the sequence of their testimony? They both want the last word. Neither one of them wants to lead off here. And who should ask the questions? Should it be an outside lawyer, Senate staffers, the senators themselves? Things are changing rapidly as you indicated at the outset. What I have to say about the format right now might be obsolete by this afternoon.
Mathieu: Well to that end, do you think the hearing should resemble a trial, with Kavanaugh receiving protections, essentially like a criminal defendant even though that's not what this is?
Medwed: I don't think it should resemble a trial, and here's why. Let's focus on the purpose of this hearing, which is really just to give the Senate information to allow it to make a decision about whether Kavanaugh has the qualifications, the character, and the integrity to justify elevating him to the highest judicial post in the land. It's basically a glorified job interview. That's it. It's not an adjudication of guilt or innocence. So while a criminal defendant has a right to due process before being deprived of life or liberty, Kavanaugh has no right to being a Supreme Court justice. It's a privilege, not a right. Frankly, I'm more concerned about protecting Dr. Ford from what might shape up to be a character assassination on Thursday than I am about Brett Kavanaugh.
Mathieu: You're not the only one. We've heard the fact that he's not charged criminally, that this is not a court of law, but could the hearings actually have legal implications for Judge Kavanaugh?
Medwed: Well that's an important point. Yes. There are legal consequences here for Kavanaugh, and, I should add for Ford. Presumably they'll be asked to testify under oath, which means that if it turns out either one of them is lying then that could lead to perjury charges. And for Kavanaugh the stakes are pretty high. Because Maryland doesn't have a statute of limitations for a felony sex offense like this that allegedly occurred when he was a juvenile. But I think the chance that he could be charged criminally for this, it's incredibly remote, given that it occurred 36 years ago. And the burden of proof is so high in a criminal case — proof beyond a reasonable doubt.
Mathieu: You mentioned statute of limitations that's important here. What about the fact that this was when Kavanaugh was a teenager. We're talking about high school, 36 years ago. Does that affect your analysis?
Medwed: That's a really important question. There is a lot of research out there indicating that the part of the brain that governs impulse control and cost benefit analysis, it's the prefrontal cortex, it doesn't fully mature in people until about the mid 20s. That's just one of many reasons why juveniles are treated differently, especially in terms of sentencing in our criminal justice system than adults. But it doesn't excuse or justify horrific conduct. Not at all. It's something that is properly viewed as part of the mitigation process — maybe we should give juveniles a break in terms of their punishment.
So to come back to Kavanaugh for a moment, whatever happened as a juvenile, he still should be culpable for that even though maybe how we treat the consequences of it might be different than if he were an adult.
Mathieu: And we should note again he denies all of the allegations even went on Fox News with his wife last night, unprecedented to see a Supreme Court nominee doing a media interview in the midst of the confirmation process. This could evolve a lot in the next couple of days, so please stay in touch with us. I'm really glad you could come by and have this conversation with us here this morning. Thank you, as always, WGBH News Legal Analyst and Northeastern Law Professor Daniel Medwed.
