This week, Brett Kavanaugh’s fate will likely be determined. The FBI will fact-find the various decades-old allegations and present its findings for the Senate Judiciary Committee, and maybe more importantly, the court of public opinion, to judge.
Thus far, he’s been judged rather harshly, with many willing to forgo due process and the presumption of innocence in favor of social media mob rule and activist juries. This may be the tipping point of the #MeToo moment some of its supporters — including me — were afraid of.
As I’ve said all along, the allegations against Kavanaugh are serious and should be investigated to their conclusions. But the left’s sudden aversion to a long-standing pillar of democracy is culturally corrosive and could jeopardize the credibility of #MeToo for a long time to come.
Over the past week or so, I’ve both participated in and watched countless cable news panels where someone opposing Kavanaugh’s confirmation says straight-faced and earnestly that Kavanaugh simply does not “deserve” the presumption of innocence.
New York Sen. Chuck Schumer, an actual lawmaker, was just as blunt: “There’s no presumption of innocence or guilt when you have a nominee before you.”
Hawaii Sen. Mazie Hirono said Kavanaugh doesn’t deserve the presumption of innocence because, “Look, we’re not in a court of law, we’re actually in a court of credibility at this point.”
These arguments are politically convenient, but also fallacious.
As Democrats should be well aware, the presumption of innocence is considered by most to be a basic human right. Just ask the United Nations. In Article 11 of the 1948 Universal Declaration of Human Rights: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his [sic] defence.”
And let’s dispatch with the idea that the presumption of innocence applies only to court proceedings, in which your liberty itself is at stake. It doesn’t.
There’s a reason why, when people are accused of crimes, the news media refers to the claims as “alleged.” It’s because in a civil society, we’ve had a longstanding norm that one person pointing the finger isn’t enough to smear another person with a deleterious label for the rest of his or her life.
The Supreme Court ruled on this last year in Nelson vs. Colorado, with a 7-1 decision. Arguing against a law that forced people to prove their own innocence to recover funds paid as a result of a criminal conviction, Robert Everett Johnson, an attorney at the Institute for Justice, wrote “Today’s decision upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise. The Court expressly rejected Colorado’s argument that the ‘presumption of innocence applies only at criminal trials.’”
The presumption of guilt has, of course, led to some considerably dark times in this country, including the persecution of Jews, the Irish, Italians and other ethnic minorities at one time or another, and not just in courts of law but “courts of credibility.” See too McCarthyism, black lists and Japanese internment camps.
The pervasive and historic presumption of guilt by law enforcement of African-Americans, in particular black youths, has endangered, incarcerated and disadvantaged generations of American families for centuries.
In just the past decade, Democrats argued that the 2010 Arizona law known as SB 1070, requiring immigrants to possess identification at all times, was inherently and odiously a presumption of guilt.
The about-face is unfortunate. #MeToo progress is important and long overdue. But if it comes at the expense of basic human rights, long-held legal principles and democratic ideals we all used to agree on, it will not last very long.