Democrats, Republicans Must Fight to Protect and Preserve Judge Kavanaugh’s Civil Liberties

September 25, 2018 Updated: September 25, 2018

Commentary

Judge Brett Kavanaugh has a stellar reputation as a well-respected judge who has justifiably earned a unanimous rating of “well-qualified” from the American Bar Association.

Until a week ago, he was destined for confirmation to the U.S. Supreme Court. But, seemingly overnight, his life has changed and become a nightmare. His reputation has been besmirched and his confirmation left dangling in the air. He and his family face uncertainty amid death threats and harassment that has turned their lives upside down.

According to his accusers, Kavanaugh is guilty of committing sexual assault against Christine Blasey Ford, a woman who has accused him, first anonymously and later publicly, of attacking her more than 35 years ago.

Her allegations don’t pass the smell test. When pressed for details, Ford couldn’t remember the date of the attack, the location of the house where the alleged attack occurred, or how she got to the house. A second Kavanaugh accuser who surfaced over the weekend has been thoroughly discredited for having an even more bizarre and unverifiable tale. None of these women told others, nor have they found a single person willing to support their tales.

While the women report vague memories of drunken escapades of more than 30 years ago, Kavanaugh has impressed some people, such as me, because he has high school calendars of events and parties dating back to 1982, when the alleged attack on Ford was said to have occurred. There is nothing to indicate the two knew each other or were at the same party.

In both cases, Kavanaugh has denied the incidents and characterized them as smear tactics. The end game seems to be to get him to withdraw from consideration. Ford and Kavanaugh are scheduled to testify on Sept. 27 at a Senate hearing. None of the tales meet the standard criteria for proving or disproving criminal allegations.

Unfortunately for America’s legal system, we now have lawyers arguing that Kavanaugh is not entitled to due process nor the presumption of innocence. What a strange, un-American position to take.

Since most of us are laymen, I thought it might help for us to understand a little more about the law. Brittany McKenna’s study guide to law is a good starting place for understanding the American judicial system. We need to know exactly what is at stake for Kavanaugh and our nation.

According to McKenna, the presumption of innocence comes from a Latin phrase, “Ei incumbit, probatio qui dicit, non qui nega.” It means “The burden of proof falls on the shoulders of the one making the allegation.” It’s not the accused who must prove his or her innocence. We learn from McKenna that William Garrow, an English lawyer in the 1700s, coined the phrase “innocent until proven guilty.” Consequently, it isn’t Kavanaugh’s responsibility to prove that, 35 years ago, he wasn’t the man who Ford says assaulted her.

The American system of justice that can trace its roots to the Magna Carta has always had certain standards that applied to criminal accusations. It affirmed liberties and rights of free men:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

Under our Constitution, individuals accused of crimes are entitled to “due process” of the law under the Fifth and 14th Amendments. Everyone is supposed to get the presumption of innocence and have their guilt established beyond a reasonable doubt.

Some members of the political left would deny reasonable doubt and the presumption of innocence to Kavanaugh. Writing in The New York Times, attorney Kate Shaw asserted:

“It’s natural to place this sort of accusation within a criminal justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.”

What matters here isn’t law as much as politics.

Shaw argues for a “context-dependent” approach that relaxes the legal standard for the burden of proof. She cites examples where nominees have withdrawn or been forced to withdraw.

The likelihood of the accusations causing a Kavanaugh withdrawal isn’t high. President Donald Trump is standing behind his nominee, and Kavanaugh has vowed not to withdraw in the face of the unsupported and unverifiable allegations.

We the People are not just spectators in this process. Whether you are a Democrat or a Republican, you have a huge stake in living in a nation where the rule of law reigns strong. Nations need predictable rules and regulations that apply equally to all citizens regardless of whether they are male or female.

We are headed into dangerous territory when educated men and women argue that the standards of truth should be relaxed in favor of women. We can’t afford to lower the bar to the point it becomes nonexistent.

Carol M. Swain is an award-winning political scientist and a former professor at Princeton and Vanderbilt universities. Her most recent book is “Debating Immigration: Second Edition” (2018). Facebook: Profcarolmswain. Twitter: @carolmswain. E-mail: carolmswain@gmail.com. Website: CarolMSwain.com

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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