Judge Moore’s Due Process

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

The more accusations that are laid against Judge Roy Moore the more we’re inclined to think the logic is for the judge to stay in the race for senator of Alabama. It’s not that we think he’s innocent or that the charges lack for seriousness. It’s that the very seriousness of the charges beg for a semblance of due process. The best way to get this may be to plunge ahead with the election.

We understand that the due process guarantees in the Constitution apply only to proper legal proceedings. They are in the Fifth and Fourteenth Amendments. They apply to cases involving life, liberty, and property — not public office. The nature of the accusations against Judge Moore are such, though, that he would have been owed due process had the charges been levied in a timely manner.

The statute of limitations has apparently put Judge Moore’s alleged crimes beyond the reach of the courts. So staying in the race may be the only chance he’s got. It has risks for all sides, the judge as well as his accusers, the Republicans as well as the Democrats. It also has benefits for both sides. Since the judge has vowed to stay in the race, it may be what happens whether the rest of us want it or not.

One possibility is that Judge Moore could stay in the race and get defeated. In the latest Real Clear Politics average of polls, he’s ahead of his Democratic challenger by two points. This is down sharply from but a few days ago. The polls were taken before Beverly Young Nelson made — at a press conference Monday — her accusation of attempted rape. A defeat would be a powerful verdict from the voters.

There’s also, though, a possibility that the judge could win election to the Senate. The upper house would probably have to seat him, if only briefly, because of the precedent established in the case of Congressman Adam Clayton Powell. This was well recapped the other day by the New York Times, but if the judge does stay in the race, it will bear rehearsing often.

The House effort to deny Powell his seat took place after the 1966 election of the 90th Congress. Worried that Powell was a crook, his colleagues refused to swear him in. They declared his seat vacant and sought to impose a fine. Powell took the case to the Supreme Court. He won re-election again in 1968 and was seated by the 91st Congress when the matter came before the Nine.

By an eight to one vote, the Supreme Court sided with Powell, saying that that Congress couldn’t add to the list of qualifications the Constitution itself sets for being a member of the House. Once a member is seated, though, either house of Congress can exercise its constitutionally-granted authority to expel a member by a two-thirds vote. In other words, it can’t exclude but can expel.

So if Judge Moore were elected Senator, an expulsion vote would be the chance for some semblance of due process. The Senate could hold hearings. It could give the women accusing him a chance to make their charges in a formal setting. That would take a great deal of courage, but the women certainly seem to have that. It would also give the judge a chance to defend himself.

How the judge might do that is hard to guess right now. So far he has simply denied the charges. Alabama Media Group’s AL.com reports that Judge Moore’s wife is suggesting on Facebook that the Moore camp is “gathering evidence of money being paid to people who would come forward.” Our guess is that a successful defense would take way more than that.

It’s not our purpose here to suggest that Judge Moore is innocent or to endorse his candidacy or to belittle the charges. On the contrary, the more serious the charges, the more the scandal cries out for some kind of due process. A congressional expulsion hearing may not rank with the kind of trial that statute has placed beyond reach. But it’s better than Facebook.


The New York Sun

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