Brett Kavanaugh Is Not On Trial – the Presumption of Innocence Is
By James Bradshaw
Observers of American politics have been glued to the cataclysmic battle over the nomination of Judge Brett Kavanaugh to the United State Supreme Court.
It is worth remembering the basic facts which led us to this point.
In June, Anthony Kennedy, the longest-serving Justice on the nine-member US Supreme Court, announced his retirement.
Justice Kennedy had long been the all-important swing vote in a large number of key 5-4 decisions, and was therefore one of the most powerful figures in American politics.
On the issue of abortion, in particular, Kennedy’s views held great weight. Never was this clearer than in the Planned Parenthood v. Casey decision in 1992, where Kennedy’s vote was all that prevented the overturning of Roe v. Wade.
This 1973 ruling has ensured that abortion-on-request for the first six months of pregnancy is in force across America’s 50 states, many of which would quickly enact far more restrictive laws were their hands not tied by the highest court in the land.
The modern Democratic Party believes in little, but it does believe in the legality and sanctity of abortion.
For this reason, Kennedy’s departure was a catastrophe. Four solidly conservative Republican-appointed judges were about to be joined by a fifth.
This could not be allowed to happen, and no Trump nominee could ever have experienced anything but vociferous opposition.
Citing access to abortion as a key concern, Democratic Senate Minority Leader Chuck Schumer even announced before a nominee was chosen that his party would oppose any of the 25 distinguished judges and legal experts from President Trump’s list of prospective picks.
When Judge Brett Kavanaugh was announced as the nominee, Schumer was apoplectic, vowing that he would “oppose Judge Kavanaugh’s nomination with everything I have.”
Brett Kavanaugh has since learned the hard way what everything means.
The initial hearings were constantly interrupted by shouting protestors. Kavanaugh’s responses were willfully misrepresented, such as when Senator Harris released a deceptively-edited video which implied that Kavanaugh had referred to morning-after-pills as “abortion-inducing drugs” and was therefore anti-contraception (as the full video showed, Kavanaugh was merely stating what a participant in a court case had said).
At all times, the Democrats sought to delay the proceedings.
Democratic members of the Judiciary Committee submitted 1,278 written questions for Kavanaugh to answer: more than have been asked of all previous Supreme Court nominees combined. More documents were released about the nominee – 267,000 pages in fact – than had been released for any of his predecessors, and yet Democrats pressed for more papers, and more time to examine them.
With an election in November, and with the Republican majority in the Senate at a perilous 51-49 level, the end game was clear: delay Kavanaugh until Republicans no longer held a majority, and then keep the seat vacant for a future Democratic president to fill.
Yet for all their efforts, this was not a nomination they could derail through conventional means.
Kavanaugh’s record was impeccable: superbly well-educated, with ample judicial experience at the federal level; a clean-cut husband and father, who coached his daughter’s basketball team and worked in soup kitchens and as a tutor in elementary schools.
He looked like a man who had always been destined for such a high office, and who had conducted himself impeccably all through his life in preparation for his inevitable ascension to the highest level in his chosen career.
But then came the game-changing accusation of sexual assault from Professor Christine Blasey Ford.
Predictably, this most serious allegation came at the 11th hour. Judiciary committee member Senator Dianne Feinstein knew of the accusation against Judge Kavanaugh for many weeks, and could have pursued it privately, but instead brought it forward at the last possible moment.
Delay, delay, delay.
The subsequent hearings have divided America further, and opened up an ugly fissure in media and political discourse. Additional allegations have been made, each one containing less evidence than the last, up to and including the lurid and baseless charge that Kavanaugh was involved in drugging and gang-raping girls during high school.
Kavanaugh has been presumed to be guilty of all charges by Democratic leaders, along with their allies in the overwhelmingly-liberal American media.
No evidence can be submitted, but none is required. He has been deemed guilty. He is guilty, and must be destroyed.
The anger which Kavanagh demonstrates at being called a serial rapist is used as evidence against him, as if men who claim innocence are meant to endure such charges with silent magnanimity.
A lesser man would have withdrawn defeated, but Kavanaugh has shown that he is made of sterner stuff than that.
The force with which he defended himself surprised those journalists who believed that his nomination was effectively dead, and wished it were.
As Kavanaugh fought to defend his honour and good name, traditional and social media was deployed against him ever more ferociously.
A picture of him testifying while surrounded by upset and disgusted-looking women has been liked almost 600,000 times: but few of these people know or care that the women depicted are Kavanaugh’s wife, family, friends and colleagues – disgusted only at what the man they love is being subjected to in front of a watching nation, and world.
At the heart of the controversy is Ford’s allegation, and Kavanaugh’s categorical denial.
Absent any additional evidence, everything else hinges upon her story, and the question of whether Ford’s word should be believed over Kavanaugh’s.
We are being told to “believe women” – with or without evidence.
To Kavanaugh’s opponents, Ford’s testimony that she was “one hundred percent” certain that Kavanaugh attempted to rape her at a party more than 35 years ago is sufficient proof.
But a large number of serious questions hang over Ford’s account, many of which are catalogued by the sexual crimes investigator Rachel Mitchell who led the questioning of Ford before the committee.
- Why is she unable to provide any details about where the alleged assault took place, whose house it was, or how she got there on the night?
- Why can she not remember any details at all about how she got home following the alleged assault, given that she testified that it took place at an unspecified location which was about a 20-minute drive from her home?
- Why was she unable to specify what year the alleged assault took place in, and why did she change her story twice about this crucial point before settling on the summer of 1982?
- Why do the therapist’s notes from 2012 which Ford cites as proof of her speaking of this incident prior to Kavanaugh’s nomination not make reference to Brett Kavanaugh specifically?
- Why do the aforementioned therapist’s notes describe her as having allegedly been attacked by “four boys,” rather than two, which is her current claim.
- Why has she refused to hand over any of these notes to the Senate committee staff to review them, and examine any discrepancies.
- Why have the four people who she claimed attended the party all said that they have no knowledge of such an event taking place?
- Why did Ford’s “lifelong friend” Leland Ingham Keyser – who Ford said was at the party that night – release a statement through her lawyer that “Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”
- Why did Ford initially claim she was reluctant to travel to Washington DC to testify due to a fear of flying – a claim which delayed the process further – when she flies regularly?
- Why did she claim to be unaware that the Senate Judiciary Chairman Chuck Grassley had offered to send committee staff members to California to interview her privately (another claim which might have delayed proceedings, to the benefit of the Democrats efforts to do just that)?
- How can she be 100% certain that Brett Kavanaugh assaulted her, and 100% uncertain about any supporting details which could be used to prove such a serious allegation?
This story would never lead to a court case, let alone a successful prosecution, in any court in the land.
An integral part of America’s justice system and legal DNA is that a person is presumed to be innocent until proven otherwise.
The presumption of innocence has been one of the hallmarks of legal systems across the civilised world. Like so many legal rights, those fortunate enough to live in jurisdictions where it applies should be very thankful to the framers of the US Constitution, who included within the Fifth Amendment of the Bill of Rights the provision that “[n]o person shall…be deprived of life, liberty, or property, without due process of law.”
The all-out war against Brett Kavanaugh and the attempt to destroy his reputation – which as Kavanaugh told the Senate committee sadly has already succeeded – has been one of the most chilling processes in recent history.
For if such flimsy and baseless charges can be laid against a man as respected and respectable as he is, then nobody is safe.
Brett Kavanaugh is not on trial; the presumption of innocence is. If he is defeated, then let it be remembered that it was at this moment when justice and reason first began to die.