By David Bryan
Background Summary of the Facts
The nomination of Judge Kavanaugh as the next Justice of the Supreme Court of the United States was, on a smooth track, heading towards his confirmation before the Senate Judiciary Committee (SJC) until, it was derailed, by a letter from Dr. Christine Blasey Ford. In that letter, she accused Judge Kavanaugh of attempted rape by him in a room at a house party, which they both attended as teenagers. Dr. Ford said also that Judge Kavanaugh’s friend Mark Judge was present during the entire incident.
In addition, Judge Kavanaugh faced other serious accusations of sexual misconduct from two other women, one being Deborah Ramirez and the second, Julie Swetnick, and a third, from an anonymous individual, only known to the SJC.
There was an immediate call to have a full ‘fair hearing’ into Dr. Ford’s allegations; by allowing Dr. Ford to testify and at the same time, giving Judge Kavanaugh, an opportunity to defend himself from the sexual misconduct accusations. The SJC decided to grant the request for the ‘fair hearing’ on Thursday September 27, 2018.
However, in less than 24 hours, after the very public testimony of both individuals, the SJC proceeded to hold a vote in order to move the confirmation hearing of Judge Kavanaugh out of the Committee onto the Senate floor for final confirmation. That vote was passed 11 to 10 in favour of Judge Kavanaugh.
During these proceedings, a last minute compromise was brokered between Senator Jeff Flake (R-Ariz) and Senator Christopher Coons (D-Delaware) to postpone the vote on the Senate floor in good faith for at least one (1) week pending an updated background investigation to be done by the Federal Bureau of Investigations (FBI); who is the agency responsible for conducting and instituting background checks on all the Supreme Court nominees.
The courageous act to instil a sense of fair play into the proceedings, in order to commence the FBI background investigation of the allegations, was supported by GOP Senators. Susan Collins (Maine) and Lisa Murkowski (Alaska).
It has to be noted that, it is by convention, that any such ‘background check investigation’ by the FBI, can only be initiated by, from and under the direction of the White House(WH) vis-à-vis the President of the United States Donald Trump (POTUS). In its directive, the WH delegated that the investigation would be “limited in scope” and only to “credible” allegations.
At the time of writing the FBI had completed its updated 7th background investigation report of Judge Kavanaugh and the SJC made it available for review to all 100 Senators during the course of today, before a vote on Judge Kavanaugh’s final stages of his confirmation, is scheduled for tomorrow Friday, October 5, 2018 on the Senate Floor of the United States Congress.
In short, on the face of it; looking at the sequence of events and procedure over the last couple of weeks involving the nomination process of Judge Kavanaugh, it would appear to the casual observer; pedestrian and routine, even in spite of the sexual misconduct allegations against him.
On the contrary, upon closer analysis, careful scrutiny and critique, Judge Kavanaugh’s nomination is far from normal, it exposes an extra-ordinary amount of bias and prejudice in his favour, to the extent that it contravenes the time-honoured principles of natural justice, so that to even attempt to confirm him as a Justice of the Supreme Court would amount to a grave mis-carriage of justice in itself, to the highest order against the rules of procedural fairness, independence and impartiality.
Without fear of contradiction, this ‘miscarriage of justice’ is separate and apart from Judge Kavanaugh’s inaccuracies, half-truths, falsehoods, judicial intemperance, bad behaviour, lack of good judgment, lack of credibility and integrity, which are also critical factors that have to be taken into account in his confirmation.
‘Ordinary Nominee’ versus ‘Accused Nominee’
First and foremost, it is necessary to remove the noise and confusion surrounding Judge Kavanaugh’s nomination, a clear distinction was needed to be made between, what this author calls, the ‘ordinary nominee’ and the ‘accused nominee’.
Under the usual circumstances of the SJC, an ‘ordinary nominee’ would by definition, be a nominee, who is devoid of any allegations of sexual misconduct or any other allegations. Thus, in the natural scheme of things an ‘ordinary nominee’ would be granted a hearing, move to confirmation by the Senate as a Justice of the Supreme Court, as was recently done, in the process of Justice Neil Gorsuch.
But, in unusual cases, in the course of the nomination process of an ‘ordinary nominee’, the nominee now finds himself in a predicament, whereby he is accused of sexual misconduct. This ‘ordinary nominee’ now is immediately described as an ‘accused nominee’.
There are two instances where the SJC faced two ‘accused nominees’. One, in the confirmation hearings of the now; Justice Clarence Thomas by Ms. Anita Hill, who alleged sexual harassment against the then nominee and secondly, as presently in the instant case of accusations of sexual misconduct against Judge Kavanaugh by Dr. Ford and others.
The importance of the distinction, gives weight to the argument that the SJC is practically legally limited and deficient of any power and authority whether express or implied to properly deal with an ‘accused nominee’ in its original oversight jurisdiction of ‘advise and consent’.
It took 27 years after Anita Hill, up until, the present in 2018, in the case of Judge Kavanaugh hearings’ to confirm this salient truth of the legal inadequacy, of the SJC- that it has no teeth, to capably deal with ‘accused nominees’ only those ‘ordinary nominees’, who are of the highest judicial character.
Put another way, Congress throughout the last 3 decades, simply failed after Anita Hill to correct and or “keep abreast of the standard of fairness which public opinion demanded rightly as it turned out” in rectifying this lacuna as seen presently again with Judge Kavanaugh as an ‘accused nominee’.
This can be compared with, for instance, the Constitution of the United States of America, were “through the years, the Constitution has expanded and developed to meet the changing needs of the United States. James Madison declared,
“In framing a system which we wish to last for ages, we should not lose sight of the changes which ages produce”.
It stands to reason, that the SJC is not legally empowered to hear the case of an ‘accused nominee’ because the allegations are criminal in nature because, in effect, the SJC sits as really a sort of administrative Tribunal, under a ‘civil jurisdiction’ as opposed to a ‘criminal investigative body’.
In other words, the SJC has no locus standi, when it comes to investigating an ‘accused nominee’. It can only ‘advise and consent’ which falls short of the criminal standard for any accused and accuser, and thereby, does unintentionally, an injustice to both parties.
By extension, the argument is put forward that, the SJC is therefore ‘improperly constituted’ under law to deal with an ‘accused nominee’ like Judge Kavanaugh, so that the SJC has no legal authority to determine the case of sexual misconduct allegations against Judge Kavanaugh, which are of a criminal nature.
Equally, the SJC can only in its original jurisdiction ‘advise and consent’ on an ‘ordinary nominees’, who are supposed to be without blemish, not tainted with any sexual allegations.
For the SJC to therefore ‘advise and consent’ on an ‘accused nominee’ is and was operating, outside its inherent original jurisdiction. The decision, to have proceeded and continued with the nomination, was a clear form of bias in favour of the ‘accused nominee’ Judge Kavanaugh.
How can an administrative Tribunal, such as the SJC investigate criminal sexual misconduct allegations against an ‘accused nominee’ Judge Kavanaugh under the same standard guidelines as an ‘ordinary nominee’?
It is humbly submitted. It cannot. Lord Denman CJ in R v Commissioners (1841) 1 QB 467; said “the court was improperly constituted; and that rendered the decisions invalid.”
‘Judgement clearly dealing with administrative decisions, therefore proceed on the footing that the presence of bias mean that the tribunal is improperly constituted’, so that, then it has no power to determine the case against Judge Kavanaugh as an ‘accused nominee’, and accordingly the decision by the SJC of 11-10 of its decision to move to the floor is void, a nullity and invalid.
Lord Reid in House of Lords in the locus classicus case of Ridge v, Baldwin  AC 40 stated:-
“Time and Time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void,…The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.”
Thus the question is now asked, where all the parties accusing Judge Kavanaugh offered a “proper opportunity to state their cases” at a fair hearing?
Dr. Ford and Judge Kavanaugh were given the opportunity to testify at a ‘fair hearing’ before the SJC so as to present and defend their respective positions, given the gravity of the allegations.
But, this was only a ‘fair hearing for Dr. Ford and to Judge Kavanaugh, in so much as to give their version of the events as they remembered. Since, the SJC refused, to call the key witness mentioned by Dr. Ford, namely Mark Judge who was alleged to be in the same room; and the other two women, Deborah Ramirez and Julie Swetnick accusing Judge Kavanaugh, and any of their witnesses.
Was the failure by the SJC to call and or refuse to call the witnesses a failure of procedural fairness?
It was held in R v. Hull Prison Visitors ex.p St. Germain (No. 2)  1 WLR 1401 by the Court of Appeal which emphasised that “where there is a charge of serious misconduct it is especially important, that procedural fairness should be carefully observed.”
Also, ‘where an oral hearing is given, as was the case of the SJC, it had been laid down in R v Deputy Industrial Injuries Commissioner ex p. Moore  1 QB 456 at 490 (Diplock LJ) that a Tribunal must:-
- Consider all relevant evidence which a party wishes to submit;
- Inform every party of all the evidence to be taken into account, whether derived from another party or independently;
- Allow witnesses to be questioned;
- Allow comment on the evidence and argument on the whole case.
Failure to allow the last two rights, which include the right of cross examine, has led to the quashing of verdicts in a series of cases.
The SJC has not carefully observed the procedural fairness or considered the points above-mentioned with respect to the calling of the other named accusers and witnesses thereto. This is breach of the principle of natural justice in the case of serious misconduct allegation against Judge Kavanaugh, and cannot be taken lightly.
It must be noted they were indeed, some Senators on the SJC who called for this ‘procedural fairness’ and requested adjournments to that effect but were flatly refused. This too, was in breach of the natural principle of a right to a fair hearing.
This point is supported in the case of Priddle v. Fisher & Sons  1 WLR 1478 where it was held that ‘wrongful refusal of an adjournment, when reasonable requested, may amount to refusal of a fair hearing, particularly where the party affected is disabled from appearing at all’.
The hearing before the SJC was not fair but unfair to all the other witnesses and accusers involved in the allegations of sexual misconduct against Judge Kavanaugh because they did not appear at all.
A fair and proper hearing, must, as stated by Lord Loreburn in the House of Lords, case of Board of Education v Rice AC 179 must include a
“fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view.”
As such, the SJC failed in its duty to give a “fair opportunity” to all parties in this controversy of Judge Kavanaugh sexually misconduct allegations and thereby breached the principles of natural justice.
One may obviously ask the question, would it make sense to have a re-hearing, even though it may appear to be an exercise in futility, in other words, it could be a “useless formality” to now call all the accusers and witnesses, since the result would be the same 11-10.
The rule of thumb is that ‘in principle, it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly’. Lord Wright once said in General Medical Council v. Spackman  AC 627 that :-
“ if the principles of natural justice are violated in respect of any decision; it is immaterial whether the same decision would have been arrived at the absence of the departure from the essential principles of justice. The decision must be declared a no decision”.
That is to say even if the SJC will probably vote the same way the SJC has an obligation to call all other witnesses and accusers regardless of the outcome.
Clearly, it is not sufficient to just call Dr. Ford and Judge Kavanaugh, whose searing self-defense testimony before the SJC, can be called into question under the realm of judicial impartiality.
‘No Man a Judge in His Own Cause’
For all intents and purposes Judge Kavanaugh cannot defend himself against accusations against himself in a case involving himself. Nemo judex in re sua. ‘A judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’.
Lord Campbell said in Dimes v. Grand Junction Canal (1852) 3 HLC 759 at 793:-
“…my Lords , it is of last importance that the maxim, that no man is to be judge in his own cause, should be held sacred….”
The reason for this is obvious; Judge Kavanaugh is not going to say he is guilty of the allegations of sexual misconduct against himself in a nomination hearing for the job of Justice of Supreme Court, the single biggest legal career breakthrough for any Judge in the USA. Of course not, Judge Kavanaugh will deny each and every allegation and not indict himself. This is clear cut case of bias.
This practice is frown on in the USA, as was evidently echoed in a letter signed by over 1500 law professors of US Universities, calling for the rejection of Judge Kavanaugh’s nomination, it stated:
“As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.”
If then by some legal ingenuity that counter-arguments where to overcome the hurdles of bias, unfair hearing , that the SJC was properly constituted to deal with an ‘accused nominee’. It is in the next heading that Judge Kavanaugh nomination cannot succeed and is in direct contravention of the ‘universal application’ of natural justice and fatal to his nomination and confirmation as Justice of Supreme Court standing as an ‘accused nominee’.
Conflict of Interest between Judge Kavanaugh, White House, FBI and the POTUS
(i)Judge Kavanaugh Nominated as an ‘Ordinary Nominee’ by POTUS
The SJC decide to jettison the ‘investigation’ to the FBI and delay the vote. But the investigation was to be coordinated by the WH under instructions from the POTUS.
The logical question here is, how can the POTUS select a nominee, his WH help prepare his testimony before the SJC as an ‘ordinary nominee’ then in another breath, aid Judge Kavanaugh in his defence as a ‘accused nominee’, all the while having the sole authority to delegate and direct the FBI in a new ‘background check investigation’ in limited scope as to who should or should not be investigated and decide which allegations of sexual misconduct are ‘credible’ against the same ‘accused nominee’ Judge Kavanaugh, who was chosen by the POTUS?
It sounds circular, but it makes perfect sense in raising the issue of conflict of interest and perceived prejudice.
It must be noted, through no fault of the WH/POTUS and or the FBI this process was not done deliberately or intentionally, this is the procedure which had been followed and laid down by years of precedent and protocol in the nomination of Supreme Court nominees.
As we all know, because it is the habit of history, it does not make it right because, this is how the way things have worked. To say the least, this process is highly irregular, highly bias and prejudicial and in need of urgent reform.
A modern case, exemplifies the exact point of this undesirable situation, and the source of the quotation, overworked but none the less true, that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
Briefly, the facts of the case, is that “a solicitor was acting for a client who was suing a motorist for damage cased in a road accident. The solicitor was also acting clerk to the justices before whom the same motorists was convicted of dangerous driving and he retired with them when they were considering their decision. The fact that the clerk’s firm was acting against the interests of the convicted motorist in other proceedings was held to invalidate the conviction.
Lord Hewart CJ expressed the essence of the rule:
“The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done, Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” (R v. Sussex Justices ex.p McCarthy  1 KB 256).
The fact at the time of writing the FBI background investigation has been released and that the WH can comment that Judge Kavanaugh nomination can proceed because there is nothing in the report that would conflict with Judge Kavanaugh testimony; raises and confirms the specter of bias, and this is also borne out by the way in which the investigation was commenced.
(ii) Limited Scope of Investigation
It was noted from the statement of Senator Feinstein (D-California), the ranking member of the SJC that :
“the WH confirmation that it will not allow the FBI to interview DR. Ford, Judge Kavanaugh or witnesses identified by Deborah Ramirez raises serious concerns that this is not a credible investigation and begs the question what other restrictions the WH has placed on the FBI?”
Also, the Attorney for Dr. Ford stated:-
“An FBI investigation that did not include an interview of Dr. Christine Blasey Ford- nor witnesses who corroborated her testimony cannot be called an investigation”
On the grounds that the FBI background investigation did not even consider the statements of the central accuser Dr. Ford and all the accusers and those witnesses renders the confirmation proceeding a nullity in the eyes of the law, since it has denied them the Constitutional right of due process to the said accusers and witnesses.
This issue speaks to itself and for itself, suffice to say in the words of Scott LJ;
“ The risk that a respondent may influence the court is so abhorrent to English notions of Justice that the possibility of it or even the appearance of such a possibility is sufficient to deprive the judicial decision of all judicial force, and to render it a nullity.” Cooper v. Wilson  2 KB 309.
(iii) ‘FBI Background Check Investigation’ versus FBI ‘Criminal Investigation’
The FBI is labouring under the same practical limitations as the SJC as it relates to ‘ordinary nominee’ and ‘accused nominee’. The Bureau hands have been tied because of convention, and as such the investigation that can be only permitted is a “background check investigation” into Judge Kavanaugh alleged sexual misconduct as an ‘accused nominee’.
So in effect, what is required as most commentators realized, is a full independent criminal investigation, with regard to all and any accusations of serious misconduct against the ‘accused nominee’ Judge Kavanaugh and not a ‘background check investigation’ earmarked for ‘ordinary nominees’.
To do this will take the FBI from under the ambit of the WH and POTUS in their ability to direct and or influence the FBI as to who can or who cannot be investigated.
A ‘background check investigation’ is the incorrect tool in the instant case and would be certainly be limited.
(iv) POTUS Comments on Dr. Ford
Having established, it is bias that the POTUS can chose the nominee on one hand, and then direct on the other hand the type and parameters of investigation, what the FBI is able to or not investigate in the allegations against Judge Kavanaugh, the POTUS remarks at the recent Mississippi rally as the person in charge of directing such an investigation were highly prejudicial.
No judge would comment on the innocence or guilt of an accuse man in public, to do so will invite a mistrial.
POTUS stated about Dr. Ford the following:
” I didn’t know, I didn’t know. Upstairs? Downstairs? Where was it? I don’t know. I had one beer. That’s the only thing I remember”
These comments were described as “wholly in appropriate”; “kind of appalling” and “just plain wrong”.
The impression given by POTUS was that Dr. Ford was lying, not credible and her accusations were made up to simply to discredit Judge Kavanaugh’s nomination.
These comments have the effect of being bias. As Lord Denning MR stated :-
“Nevertheless there must appear to be a real likelihood of bias…. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice is that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people going away thinking “the judge was bias’’. (Metropolitan Properties (FGC ) Ltd. v. Lannon  1 QB 577
The POTUS, is acting as the role as Justice and or as Chairman, since he is and was empowered to direct and influence the very investigation into Judge Kavanaugh, his comments were not only bias and but ‘raised the likelihood of bias and were directly intended to favour Judge Kavanaugh.
This would immediately, disqualify Judge Kavanugh as a suitable fit and ‘ordinary nominee’ and or ‘accused nominee’ for the post of Justice of the Supreme Court.
The law of natural justice is abundantly clear. In the instant case, it has been found that:-
- The SJC is not properly constituted to hear ‘an accused nominee’ such as Judge Kavanaugh.
- Judge Kavanaugh accusers, including Dr. Ford and Deborah Ramirez, and their witnesses have not been given a fair procedural hearing.
- Judge Kavanaugh cannot be a judge in his own cause.
- The WH/POTUS cannot act for an ‘accused nominee’ then direct an investigation on the same nominee in limited scope to the FBI, by instructing the FBI of who must and must not be investigated.
- The FBI cannot use a ‘background check investigation’ to investigate serious criminal misconduct allegations against Judge Kavanaugh. There must be an impartial full investigation independent of the WH/POTUS.
- The POTUS cannot issue prejudicial statements against the accuser in favour of his nominee Judge Kavanaugh, to discredit Dr. Ford in any way, as he is the primary adjudicator of the said investigation involving the FBI.
For all these reasons, notwithstanding Judge Kavanaugh’s allegations of sexual misconduct, his inaccuracies, half-truths, falsehoods, judicial intemperance, bad behaviour, lack of good judgment, lack of credibility and integrity, Judge Kavanaugh must be rejected as an ‘accused nominee’ in any future Senate confirmation vote for the post of Justice of the Supreme Court of the United States of America.