Written by Mark Chenoweth
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.
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.
But confirmation hearings are hardly alone today in neglecting key facets of due process. Title IX proceedings on college campuses are likewise bereft of many of the due process protections that Americans take for granted if they face criminal charges. Most prominently, as a result of pressure exerted via a 2011 “Dear Colleague” letter from the U.S. Department of Education, the standard of proof used in nearly every campus sexual misconduct investigation is a mere preponderance of the evidence (sometimes called the 51% rule) rather than clear-and-convincing evidence standard (which was the dominant pre-2011 standard) or the beyond-a-reasonable-doubt standard that would apply in criminal court.
When Title IX hearings are conducted, the Confrontation Clause is once again not enforced, the parties may not cross-examine each other, the accused cannot compel witnesses to appear, what procedural rules do exist are often honored in the breach, the investigator and the judge are often the very same person (or at least part of the same administration), the accused may not be informed of the precise nature of the accusation, and the accused is frequently denied the benefit of legal counsel—a bedrock civil right. This list too could be redoubled.
Because of this widespread lack of due process, travesties of justice occur routinely on our nation’s campuses. These proceedings not only ruin hundreds of young lives (or promising careers, where faculty stand accused), but they also subject the colleges to millions of dollars of civil liability over their “kangaroo courts.”
Federal Agency Hearings
A third place where due process is sorely lacking in America today is in formal legal proceedings at federal government agencies. Unlike the previous two examples, at most agencies these hearings rarely involve charges of sexual misconduct. Still, the ability to continue in one’s chosen career or similarly life-altering consequences can be at stake. Ten times as many Americans face an administrative hearing each year as are tried in federal court, yet these hearings fail to provide litigants due process.
Administrative trials are overseen by federal bureaucrats called “administrative law judges” who are employed in most cases by the very agency who appears before them to prosecute cases. That is, one of the parties to the proceedings signs the judge’s paycheck. Worse yet, if the judge decides in favor of the defendant, the agency can appeal that decision to the judge’s boss—namely the head of the agency that authorized the prosecution in the first place!
Even assuming administrative law judges are uniformly people who mean well, the deck is stacked against their ability to provide justice. In addition to their compromised independence, they typically must accept the legitimacy of the agency’s rules they are called upon to adjudicate. Nor may they consider constitutionally-based objections to the rules they enforce. Thus, even if a defendant concedes she violated a rule but wants to challenge the rule’s substance, she must still endure the rigamarole of the entire administrative adjudication process before she may raise her objections in federal court.
Moreover, if she then takes her case all the way up to the Supreme Court and wins, her reward is to start all over again in front of another (or even the original) administrative law judge. Most people are forced to settle before they can vindicate their rights. Others find themselves bankrupted by the lengthy, one-sided process. If someone is lucky enough to make it out of the administrative court, and past the subsequent appeal to the agency head, when that litigant gets to federal court she still does not receive due process. That’s because Supreme Court precedents require federal judges to defer to the federal agency’s interpretation of regulations and statutes even if the court thinks the litigant opposing the agency has offered the better reading of the law.
Where Do We Go From Here?
Whether it is the right to due process of law under the Fifth Amendment that is missing, the right to confront one’s accuser under the Sixth Amendment, or the right to an independent, unbiased judge, travesties of justice and fairness are bound to occur—and are occurring—whenever these rights are cast aside. In many ways, the process becomes the punishment. The Bill of Rights is a precious inheritance bestowed by America’s Founders. They had learned the hard way what injustices occur at the hands of the king when due process is ignored.
Given their dismal track record, it is worth asking whether ersatz courtrooms like the Senate Judiciary Committee, college campus tribunals or federal administrative hearings should even be in the adjudication business. The best way to avoid the consequences of unfair hearings would be not to conduct them at all. Accusations would then be left to the real courts to sort out. But if these proceedings are going to continue, they simply must do a better job of respecting due process—for the sake of all participants.
Given their dismal track record, it is worth asking whether ersatz courtrooms like the Senate Judiciary Committee, college campus tribunals or federal administrative hearings should even be in the adjudication business.
Supreme Court precedents require federal judges to defer to the federal agency’s interpretation of regulations and statutes even if the court thinks the litigant opposing the agency has offered the better reading of the law.
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
I serve as Executive Director and General Counsel of the New Civil Liberties Alliance, a civil rights organization devoted to protecting constitutional freedoms from violations by the Administrative State. I have served in all four branches of the federal government during …
You can follow Mark on Twitter @NCLAlegal and keep up with NCLA’s latest litigation activities protecting your civil liberties from violations by the administrative state at www.NCLA.legal.