The recent hearings in the US Senate to consider and decide whether or not Brett Kavanaugh should be confirmed as a judge on the US Supreme Court exposed some of the glaring weaknesses in the American system of judicial appointments to that nation’s highest court. Remember that judges are appointed for life and can have a profound effect on many social issues of great importance. Issues such as the right of women to an abortion, or the rights of a foetus, the rights of gays and lesbians, and countless other important issues. No doubt America should put the best people on that court.
In criminal law there is an expression, ‘better to let 10 guilty criminals off than send 1 innocent person to prison.’ That is acceptable in a criminal court. Is that the appropriate principle to other important decisions? Not always I would suggest. No one in his or her right mind would say, ‘Better to have 10 rapists as judges than decline one innocent candidate.’
The problem of course is what should the decision makers do when the evidence is not certain or all the facts are not in? That can be difficult. Did the American Senate get it right?
What are people to do when all the evidence is not in? In a criminal court it is clear. The court cannot convict unless it is proven beyond a reasonable doubt that the accused is guilty. If the judge or jury decides the case is not certain, a verdict of not guilty is required. That is as it should be. But what about other circumstances? What about outside the criminal court?
I think environmental law has found a workable solution. It is called the precautionary principle. This means that decision makers should act to prevent harm when it is within our power to do so, even when all the evidence is not in. For example, if someone proposes to install a petroleum pipeline that might or might not lead to environmental contamination should the pipeline be approved or not? This principle requires that the pipeline which might cause great harm, only be approved if the persons who wants it gives reasonable credible evidence that it is safe to do so.
If it is not certain whether a particular course of action will create harm or not, as for example when the existing scientific evidence is unclear or uncertain about whether it will lead to serious harm or not, the precautionary principle imposes an obligation on the proponent of the course of action, such as a pipeline, to prove that it will not lead to harm until further evidence makes it clear that the harm can be averted. In other words, policy makers are required to protect the public when there is a reasonably plausible possibility that a particular action will cause harm. The decision makers can and should act to do this even it is not certain that the action will lead to harm. These protections can only be relaxed when further sound evidence makes it clear that no harm will result. The onus of proof is on the proponent to establish a lack of harm. Not the other way around.I think the American Senate ought to have been guided by such thinking in the case of Judge Kavanaugh.
In the case of the Senate hearings both the complainant Dr. Christine Blasey Ford and the proposed judge, Kavanaugh made plausible cases in support of their position. Kavanaugh came on strong and made a forceful defence against the allegations. On the other hand, Ford was clearly credible too. She made some inconsistent statements about what happened 36 years ago, but it would have been suspicious if that were not the case. I would say it was not certain beyond a reasonable doubt who was right.
The Senate appointed Judge Kavanaugh on the basis, I believe, that Dr. Ford’s allegations were not proven. I think the Senate put the onus of proof on the wrong person. It should have said, Kavanaugh must prove he was innocent on a balance of probabilities, not on beyond a reasonable doubt.
Ford’s testimony might not have led to a conviction in a criminal trial, but it certainly was enough to reject him as a judicial candidate for a lifetime position to the highest court in the land. The public should not be required to accept a candidate as tainted as Kavanaugh, even though he might be innocent, because the public should be protected from the immense harm he might inflict on the public as a result of his lifetime appointment unless he could first prove that he was worthy.
Judge Kavanaugh was right when he called the hearing a national disgrace but not for the reasons he said so. It is a disgrace when the weighing of judicial appointments becomes a pure partisan game on both sides. It is a disgrace when an alleged sexual assault victim becomes a pawn in a political game. It is not a disgrace when an unworthy candidate is rejected for high judicial office when on a balance of probabilities, even if not beyond a reasonable doubt, it is clear that he is wholly unsuitable for that office.
I would put it this way: If you were on the board of your local school division would you hire Brett Kavanaugh to be a janitor for the school? Not me.