The ‘gut standard’: As the Kavanaugh case is aired, who has the burden to prove what?

The ‘gut standard’: As the Kavanaugh case is aired, who has the burden to prove what?
Brett Kavanaugh, Christine Blasey Ford, Charles E. Grassley, Senate Judiciary Committee, rape, sexual assault, Trump, Supreme Court, burden of proof, evidence, testimony, hearing.
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By Isaac Stanley-Becker Isaac Stanley-Becker Reporter based in the U.K. Email Bio Follow September 27 at 6:58 AM The Senate lacks guidelines or rules to assess the testimony that is expected today from Supreme Court nominee Brett M. Kavanaugh and one of the women who has accused him of sexual assault, Christine Blasey Ford. It’s largely about politics. But there are standards of proof inherited from the justice system — preponderance of the evidence, clear and convincing evidence or beyond a reasonable doubt. And a debate has unfolded, alongside the contest over the allegations themselves, about the suitability of these principles, and about who has the burden to prove what. In a hyperpartisan climate, views tend to split according to preexisting positions on the nominee. “There are not clear rules on the burden of proof in a congressional investigation,” said David J. Leviss, a Washington-based attorney with O’Melveny & Myers who has significant experience with Senate inquiries. Instead, he said, lawmakers tend to rely on a “gut standard based on their own barometers. If I had to put a name to it, maybe the standard is what offends the sensibilities. It’s a loose standard of behavior for what doesn’t seem right, and they’re making a judgment that the public will agree with them.” Lawmakers no doubt want clarity about what may have unfolded between the witnesses, Leviss said, but “the greater purpose of this process, I think, is still to evaluate his fitness and suitability for confirmation to the Supreme Court, which is ultimately a different question than if he did commit a crime 36 years ago.” “I make this distinction because I doubt very much we’ll come out of Thursday with sufficient clarity to meet any of the standards of proof for civil or criminal litigation,” Leviss added. “If that’s the goal Chairman [Charles E.] Grassley sets forth, that will be difficult.” The distinction goes to the heart of what separates starkly different schools of thought about how Thursday’s hearing should be framed. One way of understanding the hearing is as “similar to a proceeding in the criminal justice system” said Ilya Somin, a law professor at George Mason University. The other is that it’s like “a job interview.” The difference matters because a criminal proceeding would place the burden of proof on the accuser, “maybe even having to prove her claims beyond a reasonable doubt,” Somin said, while a job interview would obligate Kavanaugh to prove himself unsullied. A number of Democrats have embraced the idea that the onus is on Kavanaugh, as he is up for a promotion. Sen. Christopher A. Coons of Delaware told MSNBC this week that, “It is Judge Kavanaugh who is seeking a lifetime appointment to the Supreme Court, and who I think now bears the burden of disproving these allegations.” The statement led conservative observers to complain of a “kangaroo court” in which the presumption of innocence is turned on its head. But the maxim of “innocent unti