ANALYSIS : Today’s Closing Arguments Seek to Resolve Lingering Doubts

Having seen a charge, a denial and--over three extraordinary days--a trial, the Senate now plans to spend today hearing the equivalent of closing arguments before a jury.

But the Senate statements will be markedly different from a courtroom’s closing argument in two ways. First, unlike trial advocates, the advocates in the Senate have no fixed rule about which side bears the burden of proof or how high the standard of proof should be. Second, if the trial phase of the proceedings provides any guide, the advocacy in the closing arguments could be notably one-sided.

During the hearings, Republican senators who support Thomas closely cross-examined Hill and her witnesses and used considerable time to deliver strongly worded speeches designed to present the evidence in the best available light and sway the sentiments of the prospective senatorial jury. By contrast, no members of the committee subjected Thomas’ statements to strong cross-examination and none of the senators who were active participants in the hearing took on the clear role of Hill’s advocate.

The result is a trial record with considerable detail about inconsistencies in Hill’s story but--since Thomas simply denied that any of the events charged by his accuser had taken place--there are few potential inconsistencies in his account.

That disparity will be notably in evidence during today’s debate as Thomas’ advocates can be expected to hammer away at every weak spot in Hill’s case, seeking to raise doubts about her testimony.

First, however, the senators will have to sort out in their own minds the question of how to resolve the doubts that exist--which side bears the burden of proof.

Burden of proof is key to every advocate’s closing argument. In a criminal case, the prosecution’s extremely high burden--proof beyond reasonable doubt--is the single most important weapon in the arsenal of the defense. That standard is designed to equalize the position of the defense and the prosecution, making up for the fact that the defendant appears in court already under formal accusation by the government.

Even in civil cases, where the standard of proof is lower--generally the plaintiff must prove his case only by a preponderance of the evidence--the allocation of burdens of proof is the chief factor in deciding how to structure the presentation of evidence.

Here, however, there will be no neutral judge directing the jurors about how to resolve their doubts. Instead, each side’s advocates can be expected to make that question central to their closing arguments.

For the anti-Thomas side, the strongest closing argument would probably begin by citing the questions about his character and credibility that existed even before Hill made her charges.

Here was a lawyer, for example, who maintained that he could not recall ever having discussed Roe vs. Wade, the high court’s abortion decision, an assertion that many senators, and many people outside the Senate, found impossible to believe. Here, too, was a man who in his first round of confirmation hearings had disavowed many of his previous statements and writings, raising questions about his credibility and character.

And now that man is accused of a serious offense, one which, if true, would demonstrate insensitivity to issues likely to come before him as a justice, but one that also undercuts the norms of fairness and respect for all--values essential to the continued functioning of the nation’s highest court.

Hill, her advocates can argue, is a woman with no motive to lie. And the innuendoes made against her character have been totally dispelled by four powerful and compelling witnesses. Every effort has been made to discredit not only her charges, but her. And none of those efforts has succeeded.

Above all, the argument would continue, the jury should remember that this is the Supreme Court, the one court from which there is no appeal. And no person is simply entitled to a seat on that panel. The lifetime appointment as a justice of the high court must be earned, and it is the nominee who bears the burden of proving that he is fit.

The strongest counter-argument for Thomas’ defenders probably would not concentrate on renewed attacks against Hill. The pro-Thomas side already has planted doubts about her, but too much emphasis on those doubts could antagonize a jury.

Instead, the strongest argument is one tailored to the sensitivities of these senatorial jurors--an argument that concentrates on the unfairness of destroying a prominent man’s career with accusations that force him to try to prove a negative.

Thomas, his defenders can say, has lived his entire life in the most scrupulous manner. He has been subjected to the most extraordinary scrutiny. And then, at the brink of the prize for which he has long labored, he has been attacked by a person he had befriended and nurtured.

No one can say for sure what this person’s motivations are. But no other credible witness has come forward to allege similar misconduct. And the charges are entirely out of keeping with the character attested to by dozens of his associates and friends.

Imagine yourself in his place, they are likely to say. The events of the last week have been a tragedy, and unless you can look that man in the eye and tell him that you are convinced that the case against him has been proven, the only fair course, the only way to redeem that tragedy, will be to confirm Judge Thomas for the court.