We, the ACLU of Ohio, have two concerns regarding the nomination of and hearings for Judge Brett Kavanaugh. First, a traditional concern of the American Civil Liberties Union is due process. While congressional hearings are not formally subject to the requirement of due process, when that standard is not met the American people are justifiably skeptical of the result. The Constitution normally requires government proceedings to satisfy two requirements: 1) they must be designed to uncover the truth and 2) they must be fundamentally fair. The confirmation process before the U.S. Senate Judiciary Committee failed to satisfy either requirement. The Committee did not conduct these hearings in a careful, thorough, fair or impartial manner. The allegations of sexual assault against Judge Kavanaugh were not adequately investigated, nor were two of the accusers and several other key witnesses called to testify. As a consequence, Judge Kavanaugh was deprived of a fair opportunity to clear his name and his accusers were deprived of the opportunity for their concerns to be fully and fairly considered by the Committee and the American people.
Second, while judicial nominees do not bear the burden of refuting allegations that are raised against them, they do bear the burden of proving that they have the judgment and temperament necessary to conduct judicial proceedings in a fair, dispassionate and judicious manner, even under the most challenging circumstances. When a nominee does not answer questions directly and forthrightly; when he interrupts senators, asking them impertinent questions; when he filibusters during their extremely short periods of questioning; when he exhibits extreme partisanship, and impugns the motives of those he perceives as critical of him; when his testimony is characterized by evasive responses, a disrespectful attitude, and extreme anger – then it calls into question his fitness for any judicial office, most especially the Supreme Court of the United States.
In his testimony before the Committee, Judge Kavanaugh demonstrated all of these troubling behaviors and thereby revealed a temperament that falls well short of what we should expect of someone seeking such a high office.
