A fundamental principle of our constitutional legal system is that evidence should be judged on its merits, not on whether someone in power endorses or rejects it.

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The U.S. Senate’s vote to confirm Judge Brett Kavanaugh is a consequential decision that will affect American jurisprudence for several generations. Recent allegations of sexual assault have caused some to question whether the nominee has the fitness and character to serve as a Supreme Court justice.

President Donald Trump dismisses the allegations as politically motivated and “highly unsubstantiated,” urging that the Senate promptly confirm his nominee because the accusers are not to be believed.

The president’s view of how to evaluate the evidence and ascertain the witnesses’ credibility is misguided. Evidence should be judged on its merits, not on whether someone in power endorses or rejects it. The president’s pronouncement is premature, as the evidence has not yet been fully gathered, much less considered.

To avoid putting the senators in the position of deciding solely on the words of the accuser and the accused, the president should order an investigation by FBI agents trained to gather evidence and identify and interview witnesses. The time the investigation would take might prevent a new justice being confirmed before the opening of the Supreme Court term next month, but it could be completed and the confirmation vote taken prior to the midterm elections, or during the lame duck session, ensuring GOP control of the process. Opposition to such an investigation raises the possibility that opponents want to prevent the discovery of evidence rather than to determine if evidence exists.

Once investigated, the committee should hear the sworn testimony of all witnesses who have relevant information based on personal knowledge. A third-party witness Christine Blasey Ford says was present when she was assaulted should appear. He has expressed his preference not to be involved, saying he has “no memory of this alleged incident” and “never saw Brett (Kavanaugh) act in the manner Dr. Ford describes.” Why would he volunteer a statement that tends to absolve Kavanaugh but then immediately decline to say the same thing under oath?

There may be witnesses who heard after-the-fact accounts from Ford. One such witness is the marriage therapist in whom she confided years after the alleged incident but well before Kavanaugh was nominated. The therapist’s testimony and notes of what Ford said should be considered.

Kavanaugh’s other accusers, including college classmate Deborah Ramirez, also should be heard. Ramirez reports that others were present in the dorm room with her and Kavanaugh. The committee should hear from these people directly and under oath rather than through unsworn statements made to reporters. The same is true for any other accusers who come forward, and any witnesses who corroborate or contradict their testimony.

Some senators have proclaimed their inability to determine who is being truthful, because the hearing as currently planned will devolve into a “he-said, she-said” scenario where neither side is totally believed. They say such a stalemate will default to a vote for confirmation because nothing will be conclusively proven. Agreeing to such a limited hearing is an abdication of responsibility, when what is required is a good-faith effort to advise and consent. Moreover, serious questions about fitness and character, even based on conflicting testimony, may be enough to cause a senator to legitimately withhold a vote to confirm.

U.S. senators are entirely able to evaluate credible evidence that tends to make the existence of any material fact more or less probable. Ordinary citizens sitting as jurors do this every day, instructed by the judge that they are the sole judges of witnesses’ credibility based on factors including:

  • Quality of memory
  • Manner and demeanor
  • Personal interest, if any, in the outcome to be decided
  • Bias
  • Reasonableness of the testimony in light of other evidence

We do not pretend to know what happened to Ford or Ramirez, whether they were assaulted and, if so, by whom. What we do know is that a fair process exists, and we advocate that it be implemented — a proper investigation followed by an opportunity to hear from all material witnesses, not just the accused and the accusers, all of whose testimony should be under oath and evaluated as to its relative weight and value.

Our constitutional system does not guarantee a particular outcome; it guarantees a full and fair process, no matter what the outcome. Our concern is that the Senate committee may have that backward.