Whatever happens to Brett Kavanaugh, Democrats have normalized yet another illiberal position in their pretend crusade to save the Constitution from Donald Trump.
“Doesn’t Kavanaugh have the same presumption of innocence as anyone else in America?” CNN’s Jake Tapper asked Democratic Sen. Mazie Hirono this past Sunday. “I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” was her unexpectedly honest answer.
Plainly put, Hirono argues that because Kavanaugh—who earned the highest rating from the ABA during his time on the DC appellate court—has a record of originalist jurisprudence, it’s probable that he’s also a gang-raping sexual pervert and would-be rapist. Hey, CNN’s legal analyst Jeffrey Toobin says the accusations “ring true.” You know the type, right? Wrongthinking white guys.
Benjamin Wittes, editor in chief of Lawfare and one of the Never Trumpers purportedly fighting to rescue America from the president, wrote thousands of words rationalizing the notion that the accused, rather than the accuser, bears the “burden of proof.” No doubt, this is one of those oscillating norms that will apply solely to conservatives. Nonetheless, it’s a grotesquely illiberal sentiment in any situation, and one that is being ceaselessly repeated by the left and their allies this past week.
It wasn’t, of course, the only authoritarian sentiment being thrown around this past weekend. “Why would an innocent person hire a lawyer?” asked some Democrats and their allies. “If he’s innocent why doesn’t he demand an FBI investigation!?” wondered a number of judiciary committee members and pundits. Likely Democratic presidential contender Kirsten Gillibrand doesn’t even think the accuser should have to appear before the committee and answer any questions.
Perhaps Kavanaugh should demand an FBI investigation into an incident from over 30 years ago that he’s already denied under oath and refuse to have a lawyer present when he doesn’t get to face his accuser.
It’s impossible, of course, to prove an event didn’t occur. Which is exactly why we rely on presumption of innocence, process and evidence in determining guilt, rather than emotionalism, identity politics and partisanship. Anyone who claims that women (or men, or any other group of people) should be automatically believed is antagonistic towards a principle that girds about half the bill of rights. So this all makes sense.
The retort I often hear is that this isn’t a criminal cases, and we can have different standards. Indeed, that’s true. But don’t we utilize presumption of innocence in our legal system because it’s a rudimentary notion of fairness that goes back as far as the idea of liberalism itself?
When there’s no corroborating witnesses or credible evidence (unlike, say, the cases of Roy Moore or Bill Clinton) and the accusers are deployed in a political and coordinated manner by handlers (as is surely the case here) and some in the media have taken on an activist role (The New York Times approached “several dozen” potential witnesses about the newest allegation made in the New Yorker against Kavanaugh, and couldn’t find a single one to verify the event), we still have a moral responsibility to be respectful to the accusers. But we do not have a responsibility to give them special deference. As of this writing (and we should all be open to hearing credible evidence if it emerges), the only purported witnesses who have gone on the record and faced any penalty for perjury are the ones who deny any of these event took place.
When Republican Sen. Lindsey Graham told the media that he was “not going to ruin” a life over an accusation, there was an outcry about his predetermined position. The fact is we shouldn’t ruin lives over a mere accusation. That’s all we have right now. What’s more, there was no outcry from any of the usual suspects over the fact that at least four Democrats on the judiciary committee, as well as dozens of other elected Democrats, have stated that they already believe Christine Blasey Ford.
Democrats, who made a mockery out of the hearings from the start—ignoring rules and attempting to filibuster the proceedings—have had their political victory, no matter what happens. They either stop the Kavanaugh nomination, or possibly any swing vote on the court, or they move forward in delegitimizing a Supreme Court that values the Constitution, and thus undermines the Democrats’ agenda.
All of this is unfair to both accused and the accusers, for that matter. But as we’re treated to a character assassination, we’re told that it’s no big deal, because all Kavanaugh risks losing is a job. Merrick Garland lost out on a job, did he not? When you can’t tell the difference between a person losing out on a position and a person losing out on a position when facing accusations of sexual assault, maybe your moral compass is broken beyond repair.
For one thing, even if it were nothing more than a job interview, an uncorroborated accusation should not be disqualifying. Employees, in fact, have legal remedies to fight back when it does happen. More than that (and this shouldn’t need repeating), Republicans were under no constitutional obligation to confirm Garland. They decided not to give him a vote. For this they faced (or not) electoral repercussions. That is the prescribed process. When Dems are in the majority, they won’t have any obligation to confirm Trump’s judges, either. The difference is that one group of senators acted like a bunch of normal politicians, while the other is acting like a bunch McCarthyists.