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  • Max Stearns

Would you hire this nanny? (or what Professor Alan Dershowitz gets unforgivably wrong about the Bret

You had a baby. You and your spouse used up your parental leave, and you’ve decided that the best course is to hire a nanny. You’ve interviewed candidates, checked references, and settled upon the one you plan to hire. You ran a background check; worked out various details, such as hours, the conditions for driving, withholdings, etc.; and were just about to finalize the arrangements. The phone rings. The person on the other end tells you that she has just heard from a common acquaintance that you plan to hire a woman who many years ago deliberately or recklessly endangered her own child, who thankfully emerged unharmed and is now grown.

After struggling with the information, you and your spouse decide that you are unwilling to accept the risk. You notify the candidate, and instead arrange to hire the nanny next on your list. Someone knocks on the door. A government official, or a professor at an elite nearby university, informs you that you have violated the rights of your first nanny candidate. To let her go, you must facilitate a meeting, preferably in your living room, allowing the nanny to confront her accuser concerning the allegations against her from many years ago.

Alan Dershowitz recently appeared on FOX news. He advanced three central propositions:

(1) If Dr. Blasey does not testify and allow Judge Kavanaugh to confront her, she is violating his constitutional rights;

(2) Although contrary to Jay Sekulow, President Donald Trump’s personal attorney, the FBI has jurisdiction to conduct a follow-up background check in light of the new disclosures, this should only take place following a hearing at which Dr. Blasey testifies and at which Judge Kavanaugh has the opportunity to respond; and

(3) Although The View’s Joy Behar did no such thing, at least as reflected in the embedded clip, it is imperative never to speak in terms of victim and perpetrator.

To emphasize his personal fairness and impartiality, Professor Dershowitz further declared that although he disagrees with Judge Kavanaugh’s views, there is no question as to the judge's eminent qualifications for a seat on the Supreme Court.

To be sure, the nanny analogy is imperfect. All analogies are. First, the hiring context is private, not public. Second, any legal obligations would arise under state and local law, not under the Constitution. Even so, the central insight of the analogy remains. Of course, there is no obligation to ensure that the nanny candidate confront the witness against her, and, of course, there is no obligation to hire someone simply because the serious allegations against her have not been proven at the level required in a criminal trial. (Those who might object that nanny analogy belittles a Supreme Court appointment seem to me to have it backwards; for most families the stakes are far higher in hiring a nanny.).

Alan Dershowitz is an Emeritus Harvard Law Professor. He is an expert in, among other things, criminal law. The overwhelming majority of viewers (and I am not singling out FOX viewers) will not seek to verify what Professor Dershowitz says. Why should they? But it is increasingly clear to this observer that what Professor Dershowitz is selling isn’t expertise. It is cover. And problematic cover at that.

At the beginning of the clip we might forgive the professor for somewhat loose language concerning the central importance of the Confrontation Clause to our system of justice, a right, the professor points out, with a foundation in the Magna Carta. In fact, Professor Dershowitz forecloses the possibility of a loose analogy at the clip’s end. There Professor Dershowitz specifically states that Dr. Blasey is denying Kavanaugh his constitutional rights should she refuse to testify. That is downright false. And he knows it.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (emphasis supplied)

Read it carefully, especially the bolded text. The rights attached are rights in a criminal trial. As I pointed out in my earlier post on the Kavanaugh hearings, the Senate confirmation process is not a criminal trial. The proceedings do not seek to deprive Mr. Kavanaugh of the office that he presently holds. That would be an impeachment hearing, also not a criminal trial. Instead, this is a hearing to determine whether Judge Kavanaugh, who presently sits on the United States Court of Appeals for the District of Columbia Circuit, the nation’s second highest court, will be elevated to the Supreme Court, the nation’s highest court. This is a job interview. Just as the first nanny candidate has no right to be hired, Mr. Kavanaugh has no right to a seat on the Supreme Court. Just as the parents have no obligation to ensure the job candidate an opportunity to confront her accuser, and just as the nanny's accuser has no obligation to go beyond making the phone call, Dr. Blasey has no obligation to do anything more than she has already done. Failing to do more does not in any way deny Mr. Kavanaugh his rights under the Confrontation Clause. First, that right attaches only in criminal trials. And, second, even if this were a criminal case--and it is not--the accuser would not be the one violating the defendant's constitutional right. That would be the state, which, if it could not provide due process, should dismiss the charges.

Professor Dershowitz knows all of this. He understands the difference between a criminal proceeding, in which such rights are attached, and a confirmation hearing, in which they are not. Indeed, Professor Dershowitz rightly insists that no one should call Dr. Christine Blasey Ford, who goes professionally by Dr. Blasey, a victim, as opposed to an alleged victim, and Mr. Kavanaugh a perpetrator, as opposed to an alleged perpetrator. And yet, even taking the embedded clip from The View into consideration, no one appears to have done so. Personally, I would never join Joy Behar in ascribing probable guilt. As I said in my prior post, I have no idea whether or not Judge Kavanaugh has done what is alleged, and I hope he has not. But Ms. Behar is a private person, and she is allowed to express her opinion. One thing that the Constitution does expressly protect is free speech.

Professor Dershowitz’s second argument is equally troublesome. He maintains that although Jay Sekulow is mistaken, and that although the FBI has jurisdiction to investigate alleged state level offenses that form part of the relevant background for federal appointees, this can all be conducted after the fact, following the testimony of Dr. Blasey and of Mr. Kavanaugh. This claim is shocking. First, Professor Dershowitz impliedly compares the Senate confirmation hearings to a criminal trial, affording Judge Kavanaugh with associated constitutional rights arising under the Sixth Amendment. But even assuming that false premise, unlike in any actual trial, criminal or even civil, he then goes on to suggest that discovery can take place following the critical testimony. There is absolutely nothing to support this. It is contrary to how trials are always conducted within the American legal system. And for good reason. Discovery allows both sides to testify with the benefit of more even-handed information, and it allows the decision makers to narrow the range of disagreement, thereby focusing the inquiries at trial. (Criminal trial discovery is a bit more complicated, tending to favor the defendant as a consequence of the state's greater resources and associated advantages.)

Again, this isn’t a trial, criminal or civil. But it is the first time, at least in modern history, that the Senate Judiciary Committee is proceeding, or threatening to do so, without the benefit of an appropriate FBI background check. And yes, that check can be instigated upon the release of newer information even after the initial testimony is closed, as precisely occurred in the Clarence Thomas hearings respecting Anita Hill. President Donald Trump, who either fails to understand this, or who simply wishes to avoid his obligation, is refusing to order the FBI to undertake that investigation. This places Dr. Blasey at a considerable disadvantage as compared with Mr. Kavanaugh who has the White House and many advisors offering their resources and counsel.

Professor Dershowitz suggests that there is no real benefit to an FBI investigation, or at least to having it conducted prior to the testimony. He is wrong. At a minimum, an FBI investigation would help answers these questions: (1) are there women who as girls at Holton Arms recall parties attended by the young Ms. Ford, Mr. Kavanaugh, and Mr. Judge? (2) are there men who as boys at Georgetown Prep who recall such parties? (3) If yes to either of those questions, do any of the women or men recall instances in which Mr. Kavanaugh and Mr. Judge drank to excess to the point of Mr. Kavanaugh blacking out? (4) Are there other attendees at these parties who recall experiencing or witnessing conduct similar to what has been alleged? (5) Does anyone recall Ms. Ford exhibiting any unusual behaviors following the alleged incident that might help corroborate her claimed experience?

I’m not an investigator, and undoubtedly those who are would devise other, better questions. But I know this: Our legal system rests on a clear understanding that the order of proceedings matters. People form judgments. We are not programmable machines who, having formed a judgment, are open-mindedly willing to reject our conclusion in favor of an alternative in light of some subsequent contrary datum. Instead, the human mind reconciles, rejecting that which fails to fit comfortably with our formed views. There is a reason why prospective jurors undergo voir dire, and why jurors are admonished not to expose themselves to potentially biasing information prior to the jury’s making its final determination.

Professor Dershowitz knows all of this, or at least he should. At this point it is hard to know whether Professor Dershowitz is being manipulative, or instead, perhaps due to the onset of time, is being manipulated. But either way, he is embarrassing himself. And in doing so, by resting on his stature as the basis for crediting what he says, he is doing harm. Professor Dershowitz, whom I do not know, needs no advice from me. But were he to ask, mine would be simple. You have had a long and impressive career. Now is the time to stop.

I welcome your comments.

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