Presumption of innocence is one of the most basic and sacred principles of the American criminal justice system. However, when it comes to allegations against Judge Brett Kavanaugh it appears that many people like Senators Mazie Hirono and Charles Schumer are quick to abandon that bedrock principle opting instead for the assumption of guilt.
Not only is that unfair to Judge Kavanaugh, but it’s a dangerous mindset that goes against how our system of justice works – which differentiates the United States from other nations.
The burden of proof is on (and should be on) the person making an accusation, not the accused.
Yesterday, Democratic Senate Minority Leader Charles Schumer was asked by reporters whether he agreed with his colleague Republican Senate Majority Leader Mitch McConnell that Judge Kavanaugh should be viewed as innocent until proven guilty he replied:
“I agree that we — this is not, that’s a criminal trial. What I believe is, we ought to get to the bottom and find the facts in the way that the FBI has always done. There’s no presumption of innocence or guilt when you have a nominee before you.”
This follows comments by Hawaii’s Hirono who on a recent political talk show indicated that Judge Kavanaugh doesn’t deserve innocence because of his views on issues.
When CNN’s Jake Tapper asked, “Doesn’t Kavanaugh have the same presumption of innocence as anyone else in America?” Hirono never gave a direct answer but pivoted to his judicial jurisprudence:
"I put his denial in the context of everything that I know about him in terms of how he approaches his cases. As I said, his credibility is already very questionable in my mind and in the minds of a lot of my fellow Judiciary Committee members, the Democrats. So he comes, and — when I say that he’s very outcome-driven, he has an ideological agenda, is very outcome-driven. And I can sit here and talk to you about some of the cases that exemplifies his, in my view, inability to be fair in the cases that come before him.
Then she exposed her real opposition to Kavanaugh:
"This is a person that is going to be sitting on our Supreme Court, making decisions that will impact women’s reproductive choice. He has a — he very much is against women’s reproductive choice. And I can tell you two very important cases in which he applied the same standard, but came to totally different results to make it much harder for women to get this kind of coverage. So there’s — there are so many indications of his own lack of credibility. And I put that in a context.
There are at least two sinister philosophies at play here:
The suspension of innocence until proven guilty.
The belief that your credibility is linked to your position on issues, not truth or facts.
If we judge Supreme Court appointees by how popular their political positions are, then no one’s defense against unproven allegations would be credible based on Hirono’s standards.
Even more, turning the legal standard of presumption of innocence upside down serves no one well.
As the Wall Street Journal editorial board notes:
An accuser can’t doom someone’s freedom or career merely by making a charge.
The accuser has to prove the allegation in a court of law or in some other venue where the accused can challenge the facts. Otherwise we have a Jacobin system of justice in which “J’accuse” becomes the standard and anyone can be ruined on a whim or a vendetta.
No matter how high they may think the stakes are, leaders in Congress should not abandon important legal principles for their convenience or political ends.