Presumption of Innocence

Alan Zendell, October 4, 2018

Senate Majority Leader Mitch McConnell delivered a classic speech this morning. He’s at his most eloquent spewing political spin disguised as high-sounding principle. In this case, he was making the innocent-until-proven-guilty defense of Brett Kavanaugh’s nomination to the Supreme Court. Presumption of innocence is one of the pillars on which our system of justice is based, and the one that most set us apart from our European forbears two hundred and fifty years ago. No less than Benjamin Franklin is reputed to have said, “it is better one hundred guilty Persons should escape than that one innocent Person should suffer.”

Christine Blasey Ford delivered heartfelt testimony before the Senate Judiciary Committee last week, in which she accused Kavanaugh of sexual assault when they were both in high school. Despite the fact that a sizable majority of Americans believed Ford, without corroborating evidence, it’s doubtful that Kavanaugh could be convicted in a court of law based on what she told the Senate. That’s not surprising given the history of the way our law enforcement and legal systems have treated sexual assaults against women and the fact that the alleged attack occurred thirty-six years ago.

But the controversy triggered by Ford’s testimony isn’t about whether Judge Kavanaugh could go to prison; it’s about whether he’s fit to serve for decades on the Supreme Court. It’s also not about entitlement. No one, no matter how talented or hard-working can claim a seat on the Court as a birthright. It’s also not about him being uniquely qualified. Even President Trump said Kavanaugh was merely one of twenty-five highly qualified candidates on his short list.

Kavanaugh’s likely confirmation is also not about the ordeal the process has put him and his family through. Anyone who stands before Congress for a critical position in the government understands the game he’s involved in. If Kavanaugh’s not confirmed, I won’t feel any more sympathy for him than I did for Tom Brady when his New England Patriots failed to win the Super Bowl or for Bryce Harper when his World Series-bound team imploded around him. They’re all big boys who are worth millions.

What this is about − the only thing it’s about − is what is best for our country. McConnell claims Kavanaugh should be viewed as innocent because it cannot be proved with certainty that he’s guilty. But is that a high enough bar for a Supreme Court Justice?

If fifty Senators vote to confirm him, their motives will be anything but pure. They all have political baggage, bases to please, and overarching desires to be re-elected. For some, Kavanaugh represents an extension of the judicial philosophy that ruled large corporations have the same status as people, and since “political spending is a form of protected speech under the First Amendment,” they cannot be limited in their spending in support of political candidates. For others, he represents the hope that Roe v Wade will be overturned, and for still others, his conservative values equate to support for the super-rich in the never-ending battle over entitlements and transfer of wealth.

Kavanaugh’s testimony before the Senate told us a lot more about him than whether he was guilty of sexual assault. He revealed himself to be unable to control his rage or to keep from being verbally abusive to members of the Committee. Worse he displayed a partisan anger that sounded like the beginning of a vendetta against Democrats that could affect his legal opinions for years. He proudly announced that had written every word of his remarks himself the day before, which means they weren’t just the product of an over-emotional temper tantrum. They were carefully thought out and reviewed over a period of at least eighteen hours, and as such represent a uniquely clear look into his soul.

Today, as the confirmation vote nears, and after doubling down on his defense of himself all week, Kavanaugh finally realized he needed to apologize for both his tone and his words. Even if his apology was sincere, if anything it only the underlined the inappropriateness of his belligerence and highly partisan political leanings. Many of his initial supporters, including two retired Justices have withdrawn their support for him based on what he revealed about himself during his testimony. If Kavanaugh’s rant before the Committee felt eerily familiar, President Trump’s disgusting mockery of Professor Ford during a rally in Mississippi a few days ago was a disheartening reminder of who he sounded like.

And speaking of our loutish president, let’s not forget what the confirmation vote will really be about. Kavanaugh was selected from that short list of twenty-five because of his extensive writings on the limits of presidential power and presidential immunity from criminal prosecution. As Robert Mueller’s investigation of the Trump campaign’s activities draw to a close, the issue of whether Trump or his family members can be charged with crimes is almost certain to be heard by the Court. When that happens, do we want someone like Brett Kavanaugh casting the deciding vote?

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