These days, some have said, we are short of heroes. That is not correct. We have in everyday life those who perform heroically. Most are unsung, but we could not continue to live in a decent, secure, and just society without them. Among politicians, it is further said that most are only looking out for their own narrow interests, which generally translates into being reelected. That might be the case for some, at sometimes. But during the past several days we have found at least one who was a genuine hero.
Actually, in less politically correct times, Senator Susan Collins might have been called a heroine. But no matter. On Friday, October 5, Collins made a speech to the United States Senate explaining why she, who all acknowledged was pivotal, would vote to confirm Brett Kavanaugh as an associate Justice of the United States Supreme Court, despite the nearly unified opposition by the opposing party and allegations that he sexually assaulted a woman 36 years ago.
Quite a few politicians, and left-wing movement groups averred that the accusation by the alleged victim made in public and under oath should be sufficient to derail Kavanaugh’s confirmation. Some reasons put forth were that the accusations alone were enough to cast a shadow over the Supreme Court, that women making those accusations have been ignored in the past, and that the allegations were made in the context not of a criminal trial, but of a “job interview” for the associate Justice position, so the presumption of innocence should not apply.
As to the first, perhaps sexual assault and rape are under-reported crimes. This does not mean, however, that such an accusation should be treated as presumptively true. To do so would be to put the burden on an accused to prove a negative—difficult if not impossible. The burden to prove a fact, when contested, must always be on the proponent. It also is as much a collectivist notion as racism to make one’s sex criteria for judging truth. Collectives do not at for good or bad individuals do.
True, a Senate confirmation hearing is not a criminal trial, but neither is it a mere job interview. The Senate cannot appoint a judicial officer— only the President can. It is the Senate’s job to ratify, or not, the President’s pick, giving it a presumption of being proper. That presumption can be rebutted by sufficient credible evidence that a President’s nominee is unworthy. Absence such evidence— as was the case here— the nominee should be confirmed.
The presumption of innocence is the Golden Thread that runs through centuries of Anglo-American jurisprudence, and, indeed, life. Where it does not apply, tyranny results.
What was striking about Collins’ speech was the detailed point by point reasoning and analysis applied to facts concerning Kavanaugh’s judicial record, and the accusations of misconduct during his teenage and college years. For nearly an hour Collins first went through her analysis of the judicial opinions written by the nominee, her questioning and discussions with the nominee, and his testimony before the judiciary committee. She then answered the concerns raised about the alleged sexual assault. She concluded that, regardless of the context, before an otherwise qualified person would be denied a position on the Supreme Court, allegations would have to rise at least above a more likely than not standard, otherwise known as a preponderance of the evidence. Because of the utter lack of corroboration, and the paucity of the alleged victim’s knowledge of details, and, indeed, erroneous identification of supposed witnesses, the evidence did not even reach that lower standard.
To have failed to confirm Brett Kavanaugh because of the uncorroborated accusations would have given license to opponents to use that tactic in future appointment confirmations. It would have also upended the important principle that an accuser has the burden of proof in any forum. Senator Collins courageous defense of that principle preserved it for the futures advise and consent hearings.
An aphorism from the 19th Century, sometimes attributed to German Chancellor Otto von Bismarck, maintains that Providence takes special care of fools, drunkards, and the United States of America. Providence, or God if you will, acts through human agents. And once again Providence stepped up, and Senator Susan Collins was a splendid agent.