Republicans Embrace an Exclusionary Rule for Kavanaugh

by Michael Dorf

Here is a story I was told by a former clerk to the late Chief Justice Rehnquist about the late Chief Justice Burger: One day, the Supreme Court was hearing oral argument in a Fourth Amendment case in which the issue was whether the police had probable cause to search the defendant's home for drugs. Burger was unhappy with the direction the argument was headed, so he interrupted the defendant's lawyer. "What if the police came into your client's house and saw a dead body?" Burger asked. The lawyer replied that if the police lacked probable cause or consent to enter the house, the evidence thereby obtained would be inadmissible at trial, regardless of whether the charge were drug possession or murder. Burger harumphed unhappily. A few moments later he interrupted the lawyer and asked "What if there were two dead bodies?!"

The story was told to me to illustrate that Warren Burger was not exactly the smartest or most logical justice to don a robe at One First Street, NE. Because it's a funny story, I retell it whenever I have the opportunity, even though I am pretty sure it never happened. (I searched oral arguments and could not find anything like this.) Retelling the story is a way of saying that even if this actual exchange never occurred, it has the ring of truth. Burger was a bit of a dope.

I retell this story now to make a different point, however: Burger really really hated the Fourth Amendment exclusionary rule. In that, he was hardly alone. A great many conservatives hate the exclusionary rule. Under Chief Justices Burger, Rehnquist, and Roberts, the Supreme Court has found many exceptions to the exclusionary rule. Conservative justices--and even more so conservative politicians--think it is a technicality. Why should the criminal go free just because the constable has blundered?

That's a legitimate question. I don't want to say that there's nothing to complaints about the exclusionary rule. Indeed, I myself might favor replacing it with some other remedy for Fourth Amendment violations if I thought that some other remedy would work. I just don't think any alternative is realistic.

But here's the thing: Despite widespread conservative dislike of the exclusionary rule, Senate Republicans who are intent on confirming Brett Kavanaugh to the SCOTUS are applying a super-strong version of it.
To see why, suppose that instead of standing accused of sexual assault as a seventeen-year-old, a SCOTUS nominee (let's call him Derek O'Garland) was accused of killing a man in a bar fight last year. Let's imagine that the bouncer at a bar had written his representative in the House with the accusation, that the representative had forwarded it to a senator, but that the bouncer had asked to remain anonymous. Suppose that eventually the bouncer's allegation leaked to the press.

Now let's imagine that after substantial negotiations, the Senate Judiciary agrees to hold a hearing. At the hearing, the bouncer tells his story and adds that he's pretty sure that the owner of the bar has video recordings from the night of the bar fight that will show that it was indeed O'Garland at the bar and he did indeed kill another bar patron. Nonetheless, over the complaints of the minority members, the Senate Judiciary Committee does not subpoena the bartender to testify or to provide any video recordings. Instead, the only other witness they call is O'Garland, who angrily denies the charges and makes a number of easily disprovable statements about somewhat tangential matters that nonetheless bear on the likelihood that he is the sort of person to get into a bar fight. If, after all of that, members of the majority party on the Senate Judiciary Committee joined O'Garland in angrily denouncing the minority party's members as engaging in smears, an objective observer would think that something was seriously amiss.

Sure, our objective observer would concede, you majority party members may have reason to think that your colleagues on the other side of the aisle are using the bouncer's allegation opportunistically. You would also have reason to be angry at whoever leaked the bouncer's allegation when he wanted it kept confidential. But wouldn't you also be concerned that you are rushing to confirm O'Garland despite the fact that you have good reason to think that he's guilty of murder (or at best manslaughter)? At the very least, wouldn't you want to check to see whether there was video and, if so, what it showed? If some other people came forward and said that they had witnessed O'Garland in other bar fights, wouldn't you want to investigate their claims?

The short answer is of course you would. So what's different about the Lindsey Graham approach to Kavanaugh and the response of the majority party to my hypothetical O'Garland?

(1) Christine Blasey Ford alleges a sexual assault, whereas my hypo involves murder or manslaughter. A senator might think that sexual assault is so much less serious than murder or manslaughter that it's not disqualifying in a Supreme Court justice. But note that while some people (e.g., Amy Wax at the 52-minute mark here) say that what Kavanaugh stands accused of doing is not so bad, none of the Republican senators have (publicly) said anything like this. They--and Kavanaugh himself--have taken the position that if the accusation is true, it is disqualifying.

(2) In my example, we have potential video evidence and the recollection of a witness of a relatively recent event, not one that occurred 36 years ago. Just about all of the Republican senators who are publicly standing by Kavanaugh (which is nearly all Republican senators) have repeatedly said that given the passage of time, lack of physical evidence, and fallibility of human memory, they cannot be certain about what happened, even though Blasey Ford says she is 100% certain that it was Kavanaugh who sexually assaulted her and despite Kavanaugh's evasions and blatant mischaracterizations of what other people have said (especially his repeated descriptions of "I don't remember" as "I deny it"). Still, let's put all that aside. I fully grant that some, perhaps most, Republican senators on the Judiciary Committee assess the likelihood that Kavanaugh in fact sexually assaulted Blasey Ford as much lower than I assess it. But their resistance to fuller investigation strongly suggests that either they don't care what the truth is --but see (1) above-- or are being driven by something else, at least in part.

(3) That something else is exclusionary rule logic: When Sen. Graham bellows his outrage at last-minute leaks, he is saying that the process by which Blasey Ford's allegation came before the Senate Judiciary Committee is improper and therefore her evidence should be ignored. Now it's possible to imagine that Graham or someone else might take a different position were he to judge the alleged conduct more clearly disqualifying or were he to think the evidence of that misconduct were quite weak. But that's not how the exclusionary rule works. The apocryphal story of CJ Burger with which I began reveals him to be a bit of a dope because the exclusionary rule requires the evidence to be suppressed whether the charge is homicide or double homicide or anything else. And indeed, Graham and other Republican senators seem to think that the process by which Blasey Ford's allegation came before them is independently sufficient grounds for disregarding it. That's exclude-the-two-dead-bodies logic, plain and simple.

Of course, charges of hypocrisy can go both ways. If Republicans who generally dislike the Fourth Amendment exclusionary rule can be deemed hypocrites for applying an exclusionary rule for SCOTUS nominees in response to improper leaks, so liberals who generally favor the Fourth Amendment exclusionary rule might be deemed hypocrites for failing to apply an exclusionary rule to Kavanaugh. Right?

Well, not quite. For one thing, the exclusionary rule that Graham and other Senate Republicans apparently apply to benefit Kavanaugh was hitherto unknown. There may well be good reasons for enforcing the Fourth Amendment via an exclusionary rule but not applying an exclusionary rule to allegations that become public as a consequence of leaks.

Moreover, the version of the newfound exclusionary rule that Graham and other Senate Republicans want to apply to benefit Kavanaugh is much stronger than the Fourth Amendment version that applies in court. They seem to want to stop the entire investigation on grounds of taint, whereas the standard approach in court is to suppress the tainted evidence but to allow the gathering and then admission in court of other, untainted evidence. Determining which evidence is tainted "fruit of the poisonous tree" can be a tricky business, but the fact that tainted evidence gives rise to suspicion is not usually enough to taint an entire investigation.

The criminal typically does not go free because the constable blundered; rather, the criminal is typically convicted on the basis of other evidence. Here, such other evidence includes not just the evidence that most Republican senators have been resisting having the FBI gather in full but the evidence regarding Kavanaugh's candor and temperament that--to extend the metaphor--should fall within the "plain view" exception to the Fourth Amendment's probable cause and warrant requirements.