Weather Forecast


Judge's View: Senate confirmation hearings often misunderstood

Judge Dale Harris

The recent confirmation hearings for Judge Brett Kavanaugh have received a great deal of attention, and for good reason. However, a lot of the comments I have seen show a misunderstanding of the nature of the proceedings.

In particular, it seems that many people are equating Senate confirmation hearings with a criminal trial. A nominee for federal office is not on trial, and is not "innocent until proven guilty." There is no right to confront or cross-examine adverse witnesses, as the senators control the questioning.

The nominee is expected to answer questions, so invoking the right against self-incrimination would be extremely unusual, and politically impossible.

Although many of these criminal concepts are very familiar to all of us and vitally important, there are different rules for different types of proceedings. In the case of the Senate Committee on the Judiciary, its role is to determine whether a nominee should be confirmed. You will not find any counterparts to these criminal justice concepts in the committee rules.

Likewise civil actions, such as a personal injury case, are very different from criminal trials. There is no right to remain silent for the defendant who has been sued. In fact, it is fairly common for the defendant to be the first witness called by the plaintiff.

There is no right to court-appointed counsel for an indigent party. Witnesses, particularly medical witnesses with busy schedules, often testify via deposition and do not appear in person for the trial.

And while a civil plaintiff bears the burden of proof like a prosecutor, it is only by a preponderance of the evidence — essentially proving something is more likely than not — instead of the criminal trial's standard of proof beyond a reasonable doubt. Many civil contract disputes never see the inside of a courtroom at all, as mandatory arbitration clauses are increasingly common.

Administrative hearings are an entirely different creature, with even less similarity to a criminal trial. Traditional rules of evidence often do not apply, and the proceedings have their own separate rules allowing types of evidence that would never be admissible in a district court, such as hearsay.

Sometimes, the administrative proceedings have rules specifically barring the use of the evidence received at the hearing in any related civil actions.

For example, testimony in an unemployment hearing usually cannot be used in a private civil action for wrongful termination, even though the testimony is under oath and many of the issues overlap. Administrative hearings are before a single administrative law judge or a panel, but never a randomly selected jury.

The different rules for civil cases tend to spur settlement negotiations, leading to fewer trials on our crowded dockets. As a district judge, I am grateful that we have magistrates who hear child support cases, and administrative law judges who deal with workers' compensation and social security determinations.

Those are highly technical subjects, and it is more efficient to have specialized hearings in those areas. And the Senate has its own job to do regarding the Supreme Court vacancy, with a mix of politics and substance.

There is more to our legal system than just criminal court, and it is important to apply the right set of rules.

Judge Dale Harris is a judge in the Sixth Judicial District, working out of the St. Louis County Courthouse in Duluth. He was born in Two Harbors. He and his wife, Barbara, live in Hermantown with their four children.