This criticism of the @benjaminwittes article repeats a line that I've seen a lot on this platform over the past several days: Here, Erickson frames it as a burden of proof question, but others have framed it as a question of due process.
There are problems with this framing 1/x
There are problems with this framing 1/x
Several people (including Wittes) have made the point that Supreme Court confirmation hearings aren't criminal trials; they are job interviews. That's a good point. 2/x
But I think there's something else that is equally important. If this were the sort of situation where BK were entitled to due process or where those alleging wrongdoing bear the burden of proof, then we'd have a number of other, very serious problems. 3/x
For one thing, it would be outrageous to limit the hearing to testimony from the accused and the accuser. Any trial judge who tried to do such a thing would be reversed -- probably summarily -- on appeal. 4/x
But the other major problem with the idea that ordinary legal rules apply has to do with the decisionmakers in confirmation hearings--the Senators.
So many of them have made clear that they are not neutral --they have already said that BK should or should not be confirmed 5/x
So many of them have made clear that they are not neutral --they have already said that BK should or should not be confirmed 5/x
If this were a legal proceeding, many (if not all) of the members of the SJC would have to recuse themselves based on public statements that they've made either about this particular issue or the BK nomination more generally. 6/x
To be clear, I'm not trying to suggest that I know what procedures or burdens of proof the SJC should be using. That's not my area of expertise, and I'd defer to experts on that topic, like @AndyMcCanse 7/x
My point is simply to caution Erickson and others who are complaining that ordinary legal principles ought to apply.
You can't just cherry pick the principles that you like. /end
You can't just cherry pick the principles that you like. /end
