Senators are not actually objective fact finders trying to decide whether an accusation has cleared some prescribed burden of proof. They are political partisans elected to their positions by the American people. That’s a huge problem, from a due process perspective—due process requires impartiality from the people rendering the verdict.
“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,” wrote Carissa Byrne Hessick, a criminal law professor at the University of North Carolina, in an informative Twitter thread.
A rival framework for considering the Kavanaugh nomination also has some problems, though: the idea that this is a job application, and thus the senators can reject Kavanaugh even on the slightest suspicion of wrongdoing. For many employers throughout the U.S., that’s not actually true.
“The law varies by state, in terms of what you are allowed to do, but it’s tricky territory,” wrote Patrick Chovanec, an adjunct professor at Columbia University School of International and Public Affairs, in a similarly useful Twitter thread. “The basic idea here is that unproven allegations alone are not an adequate basis for rejecting a job applicant. In fact, depending on how you handle it, it could be an unjust and illegal basis for making your hiring decision.”