The 11th hour accusations of misconduct by Supreme Court nominee Brett Kavanaugh occurring 36 years ago when he was in high school should not be surprising. His opponents have shown a willingness to stop at nothing to derail his confirmation. The timing is perfect, oh so convenient. The allegations are sufficiently lurid, if considerably attenuated, to call his character into question, and are probably impossible to disprove to everyone’s satisfaction.
It is not surprising also that the judiciary committee member who chose to reveal it at this time is Dianne Feinstein. Ms. Feinstein, as an experienced senator, probably does not really fear that Kavanaugh will provide the vote to overturn Roe vs. Wade. What she really fears is that Kavanaugh will not vote to overturn District of Columbia v. Heller. Her crusade has been against the right of individuals to keep and bear arms for quite some time. Ideally, and if she were an absolute monarch, she would decree that no one, other than her military and bodyguards, could possess firearms.
Proving a negative is close to impossible most of the time. That is why both our criminal and civil justice systems require that the accuser, prosecutor, or plaintiff has the burden of proof. In criminal cases the standard for proof is that of beyond a reasonable doubt. In most civil cases it is preponderance of the evidence; that is, “more likely than not.” Important civil cases in which certain rights or interests are at stake, the standard is clear and convincing evidence. The latter standard should apply in this case. If Christine Ford or her supporters cannot provide such evidence, this accusation must be dismissed and Kavanaugh confirmed forthwith. Because Feinstein and others have had this information for over four months, there should not be any delay.
The reverse standard, which was that of the Spanish Inquisition, and other authoritarian and totalitarian systems, was abrogated in this country centuries ago. It has even been discredited in its places of origin. A number of egregious examples where mere accusation caused injustice include the Dreyfus affair in France a century and a quarter ago. Journalist and author Emile Zola penned and published the famous J’accuse essay, for which he was run out of France for a while. Zola’s writing stirred up questions that ultimately resulted in Dreyfuss’ exoneration, but only after he spent a number of years in the French penal colony on Devil’s Island. More to the present point, the fictional character of Tom Robinson, who stands in the place of real life accused, but innocent, rapists, is the paradigm of one convicted solely on the uncorroborated accusation of an alleged victim. In the Kavanaugh matter, likewise, the proponents of the accusation have an agenda. In Robinson case it was the fear of eroding the white supremacy order; in Kavanaugh it is the fear of halting, or really slowing, the advance to a overreaching, all intrusive government that benefits only the self-defined elites.
Mr. Kavanaugh now stands in Alford Dreyfuss’ shoes and those of the ones represented by Robinson’s character. Tomas Toquemeda and Bob Ewell would be proud? Maybe not. both are on the ash heap of history. Let’s hope they stay there.
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