My colleague Bill Widen asked me to post this for him. (I added the photo.)
(cc: Senators Flake & Kyl)
We respect John McCain for choosing honor over convenience under the extreme conditions of captivity and torture. A great man filled a large office. We too often fill large offices with small people—people who fail the test even when the test posed is less severe. Failing the test of telling the truth under oath—even when uncomfortable—might result in being disbarred for perjury. The testimony of Dr. Ford at the confirmation hearings for Judge Kavanaugh was compelling. Her testimony raises a serious question about the truthfulness of Judge Kavanaugh under oath. To believe her is to believe that Judge Kavanaugh is either lying about the event or lying about the degree to which, as a young person, he allowed alcohol to impair his judgment and memory.
Jeff Flake recently expressed support for Judge Kavanaugh while simultaneously expressing serious doubts about who to believe. He expressed a wrong idea about the standard required for Senate advice and consent—stating that due process and the rule of law required his support because allegations against Judge Kavanaugh were not proven. Tragically, this is the wrong standard.
A public office is not the property of its holder (or would be holder). The standard for Senate advice and consent to hold office is to error on the side of protecting the Republic. This standard will deny office to some unjustly, but that is the price paid by those who would seek and hold public office. The Federalist Papers make this abundantly clear. Impeachment proceedings illustrate the point most clearly. An office holder, such as a President, should be removed, with the Senate erring on the side of removal to protect the Republic. Only after removal do we apply notions of due process to protect the former office holder in his life, liberty and property. The humiliation of removal from office goes with the territory of submitting to service, but due process protects thereafter. So too with considerations of appointment to office. The failure to appoint may be humiliating and unjust—but there is no remedy for this. The public offices are our offices, not the property or entitlement of individuals. No appointment should be made here—even though, in fact, this may work an extreme injustice to Judge Kavanaugh. In the face of serious doubt, the exercise of Constitutional authority requires a “no” vote.
One cannot suspend Constitutional duty to properly exercise Senatorial advice and consent to exact a political price on fellow senators for bad behavior—that is a reckoning for another time. Bad behavior by small people is a bipartisan activity. The cycle of tit for tat must stop. When a large office is filled by an ordinary person, sometimes the ordinary person rises to the demands of that office by choosing honor when confronted with adversity. Allow a Gladiator moment in this American tragedy. John McCain was a soldier of the Republic. Honor him!
Professor William H. Widen
University of Miami School of Law