Advice and Consent: When Senators Should Act Like Fiduciaries

Abstract

There follows three simple points about the fiduciary ideal and its application to the nomination of Judge Brett Kavanaugh to the Supreme Court. First, though the Constitution does not contain the standard for advice and consent, the rationale given for its structure in the Federalist Papers suggests such a fiduciary role. Second, the role of a fiduciary requires conservatism in the standard of evaluation chosen—and not a rush to apply a high standard such as “beyond a reasonable doubt” appropriate in a criminal trial by unthinking appeal to “due process,” “rule of law” or “presumption of innocence.” Third, in a case where testimony from an alleged victim of a sexual assault, or even sexual harassment, is evaluated in an advice and consent proceeding it is instructive to look at how other legislators (in the interest of promoting justice), as custodians of state criminal laws, have attempted to reform the laws relating to rape.