It’s Not About Kavanaugh: It’s About the Presumption of Innocence

If a Supreme Court justice can’t be presumed innocent, what hope do the rest of us have?

"There is no presumption of innocence," Senate Minority Leader Chuck Schumer said, of Brett Kavanaugh.

Schumer was only echoing what other Democrats, including Senator Mazie Hirono, had been saying.  Hirono had refused to concede that Kavanaugh had a presumption of innocence. Senator Chris Coons insisted that Kavanaugh "bears the burden of disproving these allegations."

Similar arguments have appeared in the New York Times, the Washington Post, The Atlantic, CNN and across the breadth of the Democrat media insisting that innocent until proven guilty does not apply to jobs and positions. Democrat figures have trotted out alternatives to the presumption of innocence.

Anita Hill insisted that the “burden of persuasion” is on Kavanaugh. Hirono invoked a “court of credibility.” But the court of credibility is just a lynch mob. The burden of persuasion means that you are guilty until proven innocent by a political court that answers to a lynch mob.

This isn’t just about Kavanaugh. It’s about the presumption of innocence.

Kavanaugh is the latest victim of a selective reversal of the presumption of innocence. Senator Democrats didn’t invent it. They’re only shamelessly weaponizing a lefty political movement that claims that accusers never lie, but only in the context of very specific sexual harassment and assault cases.

"You've got to start off with the presumption that at least the essence of what she's talking about is real," Joe Biden insisted.

That’s not the standard in most criminal cases. It’s also not the standard in most sexual assault cases.

The left isn’t proposing that the presumption of innocence for Orlando Vilchez Lazo, an illegal alien Lyft driver accused of sexually assaulting four female passengers in San Francisco, should be suspended.

The majority of women who file sexual assault complaints with the police haven’t gained this unique new right to automatically be believed. When Hillary Clinton used every possible dirty trick to protect a rapist accused of beating a 13-year-old girl into a coma, the media defended the validity of her actions.

Why is Christine Blasey Ford automatically entitled to be believed, but not that 13-year-old girl?

Kavanaugh’s persecutors insist that the presumption of innocence exists only within the realm of criminal proceedings. But like the Kavanaugh hearings, campus kangaroo courts have introduced the reversal of the presumption of innocence into court-like settings that are capable of dispensing punishments, even if they are unable to impose prison sentences. Campus proceedings for students accused of sexual assault routinely assumed that the accused was guilty before they even began.

The left gained the power to convene tribunals to try the accused, and to deprive them of their rights, so long as these tribunals cannot actually send them to prison. The rise of these tribunals in workplaces, on campuses and on a less structured basis within the media and social media, corrodes social justice.

That very thing that the left has defined as its identity.

The left has created a code of social justice, fundamentally different than that of our actual justice system. It insists that within society, people actually have fewer rights than they do within a courtroom.

That’s what the defenses of suspending the presumption of innocence for Kavanaugh come down to.

Defendants in criminal cases should have fewer rights than ordinary people. Instead the left has flipped it around so that criminal defendants have more rights in a courtroom than average citizens do in daily life. The institutional tribunals created to try ordinary people under the presumption of guilt have created a private police state, enforced, backed and mandated by government regulations.

Government pressure on campuses and workplaces mandate that those who are accused of misbehavior in private life should be judged with the presumption of guilt. In this way, government is able to violate the presumption of innocence, a fundamental right, indirectly through third parties.

Kavanaugh’s opponents insist that the accused must show their entitlement to a position by proving their innocence. But the burden of proof must never and should never fall on the accused.

The idea that the presumption of innocence does not apply to loss of property, position, career, academic opportunity and wealth, but only to the loss of freedom, is also contrary to American values.

In Nelson v. Colorado, the Supreme Court recently ruled that requiring people to prove their innocence of criminal acts with "clear and convincing evidence" in civil proceedings in order to recover assets from the state contradicted the presumption of innocence.

The 7-1 decision was written by Justice Ginsburg. It was signed on to by Justice Kennedy, whom Kavanaugh will be replacing. Even in a civil case, the defendants “are entitled to be presumed innocent”, she wrote, and to have their property restored since they had not been convicted of anything.

Contrary to the claims of the media, the presumption of innocence was never meant to be exclusively limited to criminals. It’s not some sort of legal technicality, but the foundation of how we think about guilt and innocence. The legal theorists who originated the principle weren’t ACLU lawyers, but medieval theologians, and they based their notions of process on the actions of God in the text of the Bible.

Courts and men both were meant to imitate the virtues of their Creator. Justice was not merely a legal process, but a virtue that defined our moral codes, and instructed us how to treat others in daily life.

If the issue were just about Kavanaugh, we might look away from the sin of partisan political hypocrisy. And, as numerous cases, from Ted Kennedy to Keith Ellison, show, the left is reluctant to live by the same rules of sexual scrutiny that it seeks to impose on its political adversaries.

But the reversal of the presumption of innocence is a much wider problem and threat.

In Coffin v. United States, a classic Supreme Court case of the 19th century, the extensive precedent included a Roman exchange, "’Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?’ to which Julian replied, ‘If it suffices to accuse, what will become of the innocent?" That is the central problem of the Kavanaugh case and of so many others.

What becomes of the innocent?

Social justice presumes the guilt of certain people because of their politics, their positions, their races and their genders. It creates different rules for different classes of people with some entitled to an absolute presumption of innocence, even in the face of indisputable guilt, and others forced into an equally absolute presumption of guilt, even in the absence of any indisputable proof of their guilt.

America cannot operate under two systems of guilt and innocence, one public and one private. If the majority of Americans are to be judged by a system that presumes their guilt, that attitude will inevitably go on to permeate the courtroom. By eroding the presumption of innocence in public life, the left is eroding it as a legal right. Lynch mobs and kangaroo courts can’t be expected to stop at the courthouse door when they are celebrated and operate freely throughout the rest of the land.

Kavanaugh’s case is about more than the malicious exploitation of the #MeToo movement to destroy a political opponent. It’s the latest assault on the social presumption of innocence by shadowy forces whose ‘scoops’ dominate the media through cut-outs while their sources remain silently invisible.  

If kangaroo courts and media lynch mobs succeed in overturning a Supreme Court appointment, they will have proven that their war on the presumption of innocence extends even to the highest court in the land. If a Supreme Court justice can’t be presumed innocent, what hope do the rest of us have?


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