|Kavanaugh, Due Process, and Legislative Impasse In Richmond
OCTOBER 1, 2018
Few Washington events have rivaled the spectacle and drama of the Kavanaugh confirmation hearings. Once thought a shoo-in for the U.S. Supreme Court, the conservative judge is now embroiled in a maelstrom of accusations that include attempted sexual assault, prolific drinking, possible lying to Congress, and an insufficiently judicial temperament, all of which may eventually sink his nomination and may even threaten his standing as a sitting judge on the D.C. federal appeals court.
On September 27, 2018, the world watched transfixed as Dr. Christine Blasey Ford quietly told her story of how she reluctantly sought to inform the White House prior to Kavanaugh’s nomination about her recollections of sexual assault at his hands while in high school. We then heard Kavanaugh’s furious and angry denials, which included allegations that the Democrats questioning his confirmation were simply part of a conspiracy designed to avenge “the Clintons” for Kavanaugh’s work in the Starr investigation and for Hillary Clinton’s loss in the last election. Kavanaugh’s testimony was replete with pointed exchanges with Senators, including Amy Klobuchar, to whom he responded when asked whether he had ever experienced blackouts while drinking with “No, have you?”
DUE PROCESS DOES NOT APPLY
Throughout this process, many have lost track of the fact that the Senate confirmation process is really a political job interview — nothing more, nothing less. The notions that either the presumption of innocence applies to Kavanaugh, or that those who believe Blasey Ford have to “prove her allegations beyond a reasonable doubt,” do not apply to this situation. And while the Judge is certainly entitled to a fair hearing, he does not have a right to “due process” as that concept is understood in the law. This is not a proceeding where Kavanaugh might be deprived of rights to life, liberty, or property by a governmental entity. Concepts of “presumption of innocence” and “reasonable doubt” are typically applied to the criminal context, which is not what we have here. And while “due process” is broader in scope and applies to criminal trials, civil cases, quasi-judicial processes like Title IX matters, and occasionally in contractual matters such as job termination and grievance procedures, there is nothing in the Constitution or the common law that requires the legislative Supreme Court confirmation process to utilize these bedrock judicial principles. There is a certain irony to this in that Kavanaugh applies an “originalist” approach as a judge: for him, the words in the Constitution mean everything, and it is improper to “imply” a right that is not explicitly stated in the document. That is why so many are worried that given the opportunity, he will vote to overturn Roe v. Wade.
Thanks to Senator Jeff Flake, the FBI investigation has been reopened, but it is not at all clear how expansive this inquiry will be, whether the additional evidence supporting Blasey Ford’s direct testimony will be much different than it is at present, or – even if it is – that it will make any difference to Republican Senators intent on elevating Kavanaugh to the Supreme Court. The angry Kavanaugh performance will be replayed again and again over this week, spurring further questions about whether his partisan political statements and his combative, disrespectful demeanor should disqualify him from serving on the highest court in the land. And Republican Senators may even conclude, as have so many in the public, that Blasey Ford’s testimony is credible. In the end, however, their desires to install a young conservative on the Supreme Court may overwhelm this judgment, and with it, further undermine yet another of the many (little-d) democratic institutions being attacked by our President.
MORE DRAMA IN RICHMOND
As the drama of the Kavanaugh hearing was unfolding in Washington last Thursday, Richmond was engaged in its own high level of controversy. Redistricting was again the subject of debate, specifically a Republican proposal that finally emerged over three months after the federal court directed the House to remedy an unconstitutional scheme devised by the majority in 2011 to preserve their power for a decade. At roughly the same time as Kavanaugh launched into his angry and defensive diatribe, delegates in Richmond were debating the Republicans’ new plan.
Led by Delegates Marcia Price from Newport News and Joseph Lindsey, a trial lawyer from Virginia Beach, the Democrats peppered the Republican sponsor of the bill with questions. Under the Republican proposal, not only were few Republicans disadvantaged, but some actually had their districts’ expected Republican vote turnout improved. Several members of the public also rose to discredit the Republican bill, which claimed to provide a “race neutral” solution to a racial gerrymandering. The public testimony made the obvious point that it was impossible to draw a map to remedy an unconstitutional gerrymandering based on race without considering race.
The Republicans explicitly stated that one of the criteria they used in drawing their map was to “maintain the present partisan composition” of the House, something the court never required and is not a constitutional requirement. Using this criterion meant drawing lines to cement the present Republican majority, which was itself built on the unconstitutional gerrymandering in 2011. Moreover, since it was inevitable that a constitutional new map would need to move African American voters to adjacent (and more Republican-voting) districts, the partisan composition in a new arrangement would inevitably have to change.
FOUR ELECTIONS WITH UNCONSTITUTIONAL MAPS
In 2014, voters from twelve House districts filed a lawsuit questioning the constitutionality of the 2011 redistricting map drawn by Republicans. They argued that African Americans were unconstitutionally concentrated into a small number of districts, resulting in the dilution of African American voting power while creating a partisan advantage for Republicans. After several trials and a hearing before the U.S. Supreme Court, the case was finally decided, and the federal court issued an opinion on June 26, 2018, stating that the 2011 map violated the Constitution due to racial gerrymandering and directing the House to prepare a new map. The November 2017 election was the fourth House election conducted using that unconstitutional map.
Since the court’s opinion, the Republicans have continued to stall. In July and again in August, I wrote to the Speaker asking that we reconvene to draw a new map. I was met with silence. The Governor then called a special session for August 30 so we could pass a map. The Democrats offered a map; the Republicans did nothing, and instead rejected efforts to set a timetable to return to Richmond for deliberations. Within thirty minutes of the end of our session of August 30 with no progress, the court stepped in and told the Republicans that its order would not be “stayed” or suspended, and asked for progress reports on the status of a map. Since the Republicans did not have a map, they then had to produce one, and three weeks later on September 26, a full three months after the court order, they finally introduced a proposal. The House Privileges and Elections committee convened to hear the bill on September 27, at about the same time as the drama was unfolding in Washington.
Since the committee hearing the bill is controlled by Republicans, the outcome was never in doubt; the map was passed through to the House on a straight party-line vote of 12-10. The next step is House floor debate, which could have also occurred last Thursday, but did not, because the Republican strategy is to delay in hopes they can “run out the clock” and prevent the court from drawing constitutional maps in time for the 2019 election. New maps would open up more districts to competition and could therefore serve as a springboard for the Democrats to regain control of the House.
We will likely hear this week when we will return to Richmond to vote on the House map. But it is hard to imagine a scenario under which this map could become law. Most if not all House Democrats are likely to vote against the proposal, and while the Governor has not stated explicitly that he will veto the bill, his statements in the press seem to telegraph his intent to do so. In short, we are, as we were on August 30, at a legislative impasse, the remedy for which is for an independent body – the court – to draw a constitutional map.
COMMITTED TO A NONPARTISAN COMMISSION
This experience has only reinforced my long-standing view that politics should be taken out of redistricting. Virginia needs an independent nonpartisan redistricting commission, and I am committed to supporting a plan in the 2019 legislative session that can pass the General Assembly, so it can then get to the voters, who will install it in our state Constitution.