Mark Chenoweth, '99: "This country is in danger of forgetting about the Bill of Rights and why due process matters."

Have Americans Forgotten Why Due Process Matters?

October 16, 2018 Forbes

America has a due process problem.

Whether one considers the contentious recent Supreme Court confirmation hearing, Title IX proceedings on college campuses, or federal agency hearings in front of administrative law judges, this country is in danger of forgetting about the Bill of Rights and why due process matters. Rights violations are rampant in all three of these contexts, and the resulting damage to justice, fairness, and—importantly—the perception of justice and fairness is incalculable.

Confirming Judges

Confirmation hearings and the FBI background checks that accompany them are not judicial proceedings. Having worked on nominations as a civil servant in the Office of Legal Policy at the U.S. Department of Justice from 2002-04, I know the process well. But this latest hearing laid bare for the whole country why the legislative branch with its party politics, election timetables, and ulterior agendas cannot supply fair consideration of allegations or seek an unbiased determination of truth.

Consider just some of the many defects in due process that occur at a confirmation hearing when criminal conduct has been alleged: (1) impartial juries and independent judges are nowhere to be found; (2) the Constitution’s Confrontation Clause does not apply, so witnesses need not confront the person they are accusing; (3) neither the accused nor the accuser may cross-examine the other directly to bring out the truth; (4) the accused does not have the right to compulsory process for obtaining favorable witnesses; (5) no statute of limitations exists—something that applies in nearly all civil and criminal proceedings, because the ability to disprove guilt or liability evaporates over time; (6) hearsay is allowed, as is other ordinarily inadmissible testimony.

The point of running down this list—which easily could be doubled in length—is to show that no matter where one comes down on the outcome of the hearing, neither side may reasonably conclude that a fair proceeding aimed at discerning the truth took place. As a result, one side believes that the nominee’s character was maligned with unfair testimony, while supporters of the accuser(s) believe that the truth was ignored. Where due process is disregarded, both accuser and accused are doomed to walk away aggrieved.