Wednesday, October 10, 2018

Two Things the Kavanaugh Fiasco Did Damage to "From the Right"

Both are ongoing, but the Kavanaugh confirmation process both highlighted the damage and added to it.

Thing One: "Presumption of Innocence"

Here's a non-Kavanaugh-related example of the problem, from a piece on civil judgments pursuant to rape allegations. I agree with the author that people acquitted of crimes shouldn't face a lower standard of proof in subsequent civil actions based on the claim that they're guilty, but then he goes on to write:

For us to live in an open, liberal society, the presumption of innocence has to exist as a social idea as well as a legal one. We need to recognise that people should not be branded guilty of serious crimes unless judged to be so by their peers, against a high standard of evidence.

No. It is not that way. It's never been that way. It's never going to be that way. And it shouldn't be that way.

"Presumption of innocence" in the absence of proof beyond a reasonable doubt is a standard/threshold for formally (through e.g. a criminal court proceeding) penalizing someone for a crime he or she is accused of committing. That's all it is, and demanding that its application be expanded to social interactions in general isn't just silly, it's dangerous.

If you think you saw me put something in your drink, you don't have to give me the benefit of doubt and consume the drink in the absence of video footage confirming that I did, witnesses credibly testifying that I did, and a jury of my peers unanimously concluding that I did.

Thing Two: "Due Process"

Brett Kavanaugh was being considered for appointment to the Supreme Court, not being tried for sexual assault. Vis a vis the sexual assault allegations, some people managed to convince themselves that in order for him to not get the job, "due process" required that he be "convicted" of those allegations by a reasonable doubt standard after a thorough criminal trial style proceeding.

"Due process" for a SCOTUS position is as follows: Presidential appointment and the "Advice and Consent of the Senate." That's it. That's all. There's nothing else.

On the "advice" end, presumably the Senate might send the president a list of people they think would be good for the position. On the "consent" end, there's absolutely, positively no standard whatsoever concerning how Senators may or may not vote. A Senator can vote yes because he likes the the nominee's hair color. A Senator can vote no because she doesn't like the nominee's shoes. Or, more to the likely end, a Senator can vote yes or no based on the nominee's perceived political affiliations.

Once Trump nominated Kavanaugh, the only thing Kavanaugh was entitled to was for the Senate to vote yes or no on his nomination after considering his fitness in whatever manner they chose, and to whatever standard they damn well felt like applying. And even that is far more than any other applicant for any other job is entitled to.

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