There is a political party in America where a not inconsiderable number of its members evidently believe that the FBI is staffed by infallible men who have superhuman like abilities to discover the truth of accusations, even into areas over which they have no jurisdiction, and who also implicitly think that any man accused of rape is guilty until proven innocent.
The new law and order party: the Democrats of 2018.
Let me tackle the somewhat less serious issue first. The mantra, repeated endlessly for the past two weeks, is all we need to do to get to the bottom of the allegations against Brett Kavanaugh is have the FBI investigate. Nevermind that the allegations do not involve a federal crime, or that Kavanaugh has been investigated (so to speak) multiple times by the FBI due to the positions he has held or has been nominated for. No, that’s not enough. Only the FBI has the authority and skills to determine the truth.
AG Conservative explains why this is all a load of bunk better than I can. Long story short, Congress is itself an investigative body. An FBI investigation will yield nothing that has not already been revealed. This is nothing more than a delaying tactic, but it’s a farce we’ll have to endure for another week to satisfy the man from Arizona with the spine of jell-o.
As for the #BelieveSurvivors contingent, this is a bit more delicate. Women who bring forward rape allegations should not be ceremoniously disregarded or mocked (though the allegations brought to light by porn lawyer Michael Avenatti are so bizarre they may merit being disregarded out of hand). A woman should not be made to feel like her life is threatened were she to bring forward an allegation or charge.
But the idea that all women should be entirely believed automatically is another. Of course, the logical corollary to “the accuser should be believed” is not necessarily “the accused is therefore guilty.” Even if one believes some kind of attack happened to the accuser, there could be any number of lapses in memory that mean the accused is not the guilty party. Leaving that aside, though, in today’s world “believe the accuser” is de facto “assume the accused is guilty.” And that is grossly unfair both as a matter of law and social construct.
One of the more repugnant critiques of any attempt at defending Kavanaugh is to say that this is merely a “job interview,” not a trial. Once again, the aforementioned AG Conservative is a good source for rebuttals to this argument. Of course Kavanaugh is not entitled to the Supreme Court seat, nor is the bar as high in assessing his guilt or innocence as high as it would be if he were on trial. But that does not mean the burden of proof is flipped and the presumption of guilt hold sway until he somehow prove his innocence beyond a reasonable doubt.
For Brett Kavanaugh, more than just a job is at stake. His reputation has already been sullied, and if his nomination were to be withdrawn “just to save face,” the presumption of guilt will linger for the rest of his life. Indeed, for millions he is already assumed to be guilty, but that is their problem. It is not right to have a man be considered an attempted rapist just because of the existence of the accusation. And if you think that all the other facts of his life make this a consideration not worth keeping in mind, then I would like to see how you treat a false accusation leveled against you.
Another issue with this presumption of guilt (or automatic belief in the veracity of the accuser’s claim) is that is has put sexual assault crimes in a special category. If Brett Kavanaugh had been alleged to have gotten drunk and assaulted one of his classmates, I don’t think we’d be seeing a “believe the man” campaign. Even granting that sexual assault or rape are much more traumatic for the victims and meriting of special scorn (and I do grant that), that does not mean all the rules of due process fly out the window only for crimes of a sexual nature.
Over the past few months I have been listening to the Constitutionally Speaking podcast, and it’s made me look more closely at the ratification debates. The lack of a guarantee of jury trials in civil cases, and the lack of a bill of rights including a due process guarantee are among the most important causes of opposition to the constitution. This recognition of the vital importance of due process is not just some legal mumbo jumbo applicable solely to defendants at court. It is a reflection of the importance our society places on fair play. Indeed our country’s abandonment of that principle with regards to certain segments of society is rightfully seen as one of the primary blots on our nation’s history. Funny that the people who are quickest to condemn our country’s past for failing to live up to this ideal are the ones loudest in their condemnation of Kavanaugh.
For too long conservatives have been too quick to believe men in badges, and have also tended to be the quickest in assuming the defendant in a trial is guilty before all the evidence comes in. That has been changing over the past few years, at least in certain conservative circles. More conservatives are coming to appreciate the importance of respecting the rights of the accused – and even the condemned, at least when it comes to conservative embrace of prison reform. Most conservatives (though sadly not enough) rightly were outraged at the murders of Philando Castile and Botham Jean, and though we may debate some of the elements of #BlackLivesMatter, there’s a growing appreciation of the extreme fallibility of men and women of the law.
So that makes these recent developments all the more chilling. The left is becoming more comfortable with goon-like tactics while abandoning the concept of due process.
I think there’s a name for that.