The Great Crusade at 75

The pleasant town of Bayeux in northern France is famous for its eponymous tapestry depicting the events leading to the Norman Conquest of England in 1066. Across from the railway station there is a café that serves cold beer and the apple cider the region is also famous for. That establishment bears a sign in English “Welcome to our liberators.” The sign might appear to be incongruous to some of us, except that ten kilometers to the northwest is a bluff overlooking a sandy expanse along the English Channel that for the past seventy-five years has been known to the world as Omaha Beach.
Many words will be written and spoken on this 75th anniversary of D-Day, the beginning of what General Eisenhower called the “Great Crusade” to end the Nazi occupation of Europe, and ultimately win World War II. Today, the word “crusade” is politically incorrect in some circles as being offensive to those who have vowed to kill us and actually have achieved some success in doing so. And we have become accustomed to euphemisms, direct and to the point speech being too harsh for our sensitive ears. That is just as well. The loudest, and most eloquent, statements to be made come from the 10,000 American graves at the top of the cliff and the sound of the waves below.


When visiting the beach even this long after the fact, it is not difficult to picture the horror and chaos experienced by the soldiers and sailors who stormed ashore that day. The Germans had fortified nearly the entire coastline of France, as well as the coasts of other occupied countries, into what was called the Atlantic Wall. Various barriers and obstacles had been placed in the water offshore to prevent landing craft from reaching dry land, and to channel invaders into killing zones covered by machine gun bunkers dug into the 100 feet high cliffs above. This required the assault to be made at low tide, leaving a 300 yard open expanse of sand to traverse before the slightest natural cover could be reached. Above the high tide line is another 50 yard stretch of loose sand. Walking unencumbered on loose sand can be difficult; running with 60 pounds of weaponry and equipment, all the while facing withering small arms and artillery fire, has to have been a nearly superhuman feat. Many of the invaders did not make it; that so many did is a credit to the quality of the military training and preparation, as well as the fortitude and power of the survival instinct of the troops. The actual film footage in the Normandy episode of the Victory at Sea documentary demonstrated some of the difficulty, but the bloodiest parts had to have been edited to make it suitable for a 1950s home audience. The fictional first 24 minutes of the film Saving Private Ryan might more accurately portray the horror and difficulty of the assault, but still may be an understatement.


Eisenhower said in his address to the American, British, and Canadian service members who were about to land on the beaches: Your task will not be an easy one. Your enemy is well trained, well equipped and battle-hardened. He will fight savagely. They were about to discover that he got that right.


It could have been worse. A major part of the plan was to deceive the defenders as to where and when the attack would be made. As previously mentioned, the entire coast-line was fortified. The defending German army was battle-hardened, and exceptionally well-led by Field Marshals Gerd von Runstedt and Erwin Rommel. Their main problem was manpower and munitions. Five years of war, and the continuing demands of the Russian front in the east made critical to the defenders the knowledge of the place and time of the landings. The deception, with some cooperation from the weather, worked. The German defenders were caught off guard at Normandy, and were unable to bring the full weight of their forces to bear until a beachhead was established. But in spite of the withering fire and the obstructions, even Omaha Beach was taken by day’s end. The Americans didn’t get much farther that day, though, and the casualties were huge. This beachhead, established by those soldiers, whose ranks are now thinning day by day, made it possible to end the war in Europe. Nazi Germany unconditionally surrendered eleven months and two days after D-Day. Those few that are left, and those who passed before them, merit the gratitude of us all.
For every victor there is a vanquished. So it must be added that within five years of the victory, the United States, and to some degree Great Britain and France, have become allies, if not friends with Germany during forty years of Cold War, and beyond. There was no doubt then, or today, that the German Army was fighting on behalf of evil masters and a bad cause. Soldiers, most of whom in World War II were not fighting because they wanted to, can nevertheless fight honorably for an ignoble cause (or dishonorably for a good cause, for that matter). Soldiers know this, and once the fighting is over, they are often more inclined than the civilians far from the horrors to let bygones be bygones.

A poignant story related in a British history magazine relates the ordeal of two soldiers, an American and a German defender who shot him at Omaha Beach. Both survived the war. Heinrich Severloh manned a machinegun in a bunker in the cliff. He estimated that he fired over 12,000 rounds before he ran out of ammunition for it, and then picked up his carbine to continue shooting at the attacking Americans. Three of Severloh’s rounds hit David Silva, as he and other GIs were scrambling for cover on the beach. The German was later captured and held in a POW camp until some time after the end of the war. He was repatriated in 1946 and took up farming. After reading Cornelius Ryan’s book The Longest Day, published in 1959, Severloh learned that he was the one shot Silva. In 1963, the two former adversaries met each other in Germany. Silva, by that time had taken Holy Orders as a Catholic priest. The two formed a friendship, as former soldiers who fought honorably for opposing sides are often known to do, and corresponded for many years. They both suffered of the circumstances that attend the fog and maelstrom of war.


But the story of Severloh and Silva’s later relationship is only an aside. The honor today goes to Silva and his fellow servicemen who stormed the beaches on the fateful day. They we salute.

Crashes and Causes

The two fatal crashes within months of each other of Boeing 737-MAX aircraft is not the first situation where a new category of airplanes entered service with a dangerous design flaw. In 1952, the De Havilland Comet, introduced by the British Overseas Air Corporation (BOAC) as the first passenger jet, had three fatal incidents shortly after its introduction. The airplane was soon grounded and investigation determined that the structure was not sufficiently strong to withstand the cyclic pressurization and depressurization required to fly at high altitudes. The investigation and remedies took nearly six years before the Comet would again fly, but by that time Boeing’s 707 had gone into service and eclipsed the British aircraft.

The one-time U. S. aviation leader Lockheed designed and built the Electra L-188, (known as the Electra II, as it had a 1930s model of the same name), in the late 1950s. The Electra II was a turboprop, using gas turbine, rather than conventional piston, engines. It was kind of a hybrid jet-propeller, considerably more powerful than the piston-props, like the Douglas DC-7, then in wide use in the United States.

In September 1959, a Braniff Airways Electra came apart in mid-air in a thunderstorm near Buffalo, Texas on a flight from Houston to Dallas. All of the passengers and crew were killed. There was no immediate explanation for the crash. A few months later in early 1960, a Northwest Orient Electra suffered a similar fate near Tell City, Indiana, on a flight from Chicago to Miami. Again, there was no apparent reason, though by then air turbulence was suspected as a contributing factor. The aviation industry and flying public became concerned and calls were made to the FAA to ground the Electra.

At the time, few Americans used flying as their mode of long distance transportation. Private railroads still had passenger trains, though they were slowly fading from the long distance scene. The Interstate highway system was significantly reducing travel time by automobile. The airline industry was growing, but many, if not most travelers were unconvinced flying was altogether safe. There was no Twitter, and even national television news was in its infancy, and sparse. No public groundswell demanded grounding the Electra. Because of the suspected turbulence factor, experts believed that ordering speed limitations on the airplane would provide a sufficient margin of safety while the CAB (forerunner to the NTSB), Lockheed engineers, and other specialists sought the probable cause. The FAA Administrator Najeeb Halaby (whose daughter Lisa later became Queen Noor upon marrying the King of Jordan) agreed and issued speed restriction but declined to ground the Electra.

It did not take long for the investigators to find the probable cause. An obscure law of physics, known as whirl-mode flutter, was the culprit. The propellers on the turbine engines caused flutter, not unlike the wobbling of a spinning top. The propellers of a piston engine would do the same thing, but the turbines were much more powerful. The wobbling was compensated by the stiffness of the engine mounts to prevent imparting it to the wings. When flying into turbulence at a speed that caused the wings to flex at a frequency that coupled with that of the engines’ flutter, a phenomenon called harmonic coupling, the stress would cause metal fatigue and the wings could snap off. The solution was to stiffen the engine mounts. Lockheed modified all of the Electras in service and designed newer ones accordingly. No other Electra went down as a result of this cause.

The fix did not do Lockheed much good, however. The airlines and passengers lost confidence in the airplane, and pure jets, like the DC-9 and Boeing 707, much better transportation in numerous ways, were rapidly coming into service. Turboprops were passé, except for short-haul and cargo purposes.

What about the 737-MAX issue today? Well, I am not about to second guess the FAA. Grounding the aircraft may be overly cautious, but they know vastly more about the facts and circumstances surrounding the accidents than the general media and public know. A Southwest Airlines pilot, who must remain anonymous, has opined that Southwest’s pilots knew about the software problem, and how to compensate for it. Whether the pilots of the Indonesian and Ethiopian air carriers had the same information has not been disclosed as of now. One factor that could have affected those pilots’ appreciation of the issue is language. The international language of aviation is English. Manuals for aircraft manufactured in the United States are written in English. Idioms and nuances do not always translate well. Anyone reading the instruction for consumer electronic devices manufactured in Japan has seen some strange phraseology.

But there is a more basic issue. How much should computer software and the so-called “artificial intelligence” take over the judgment of trained and experienced human beings, particularly when lives and valuable property are at risk? A 2006 article in Scientific American, “The Expert Mind,” showcased a study that becoming truly expert in any discipline took ten years of experience. Airline pilots are required to have 1,500 hours to obtain an Air Transport Pilot (ATP) license and around 5,000 hours (more than 6 years minimum or around 20 hours in the air per week) to be a captain for a long haul aircraft. Computers can help with many tasks but ultimately, they are only a tool.

It appears aviation has come to a point where computers can fly a plane, from take-off to landing, making pilots redundant other than as system monitors. There are other disciplines were this phenomenon is occurring, often to our detriment. It is a point too far when bad software can actually prevent pilots from taking the stick and flying the airplane, and those pilots rely on the program to make decisions until it is too late. If it is determined to be what happened in the recent 737-MAX plane crashes, it should be a lesson for the aviation community.

Logic and the Presumption of Innocence

I recently listened to an interview on the Dallas NPR radio station KERA with author Eugenia Cheng. Dr. Cheng is a British mathematician who, interestingly enough, is currently Scientist in Residence on the faculty of the School of the Art Institute of Chicago. Her recent book the Art of Logic: How to Make Sense in a World that Doesn’t. Dr. Cheng was articulate, logical (of course), and interesting. Most points she made were apt and helpful to anyone interested in the operations of discourse and persuasion. Those abilities are part of the stock in trade of lawyers, as rigorous logic is the stock in trade of mathematicians.

Dr. Cheng mentions the phenomenon of a paradox in mathematics and its application in human interactions. One situation she considers paradoxical is prominent in recent events: Whether to presume the accuser or the accused in a sexual misconduct charge. The paradox is that, on the accused is presumed innocent, the accuser is presumed to be untruthful. The accuser is the put to the burden of reliving the trauma in proving that she (usually a “she”) is telling the truth. If it is wrong to make an (alleged) victim prove her case, the presumption of innocence for the accused fails. She doesn’t directly say this, but Dr. Cheng gives the impression, and she’s certainly not alone, that in sexual misconduct allegations, the accuser should always be presumptively believed. This is so because sexual impropriety is so traumatic, the fact that one comes forward with an accusation is seen as a courageous act that deserves respect. Or, “why would she if it wasn’t true?”

The presumption of innocence is the “golden thread” that runs thorough our jurisprudence. It’s based on the principle that it is better that 10 guilty persons get away than one innocent person be convicted, and that the burden of proof is on the one who asserts an accusation or a fact. The first principle is ancient in the common law; it was articulated by William Blackstone in his Commentaries on the Laws of England and affirmed by the courts of the United States and most nations in today’s world. John Adams, in his defense of British soldiers accused in the Boston Massacre, explained the rationale, and the logic, underlying the principle:

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

“But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Yet another pertinent adage is that “One might as well be hanged for a sheep as a lamb.” At English common law refers the penalty for any theft of any livestock was execution by hanging. If there is no difference in the penalty, one might as well steal a more valuable wool-bearing mature sheep as a lamb. There’s no point in going half-way. This is one reason the case law and statutes evolved and settled on a graduated scale of penalties depending on the seriousness of the offense.

The Supreme Court has recognized that “the standard of proof [at a minimum] reflects the value society places on individual liberty.” When the punishment of a crime or cause of action poses a greater threat to a person’s interest, that crime or cause of action must be adjudicated with greater due process protections to the accused.

Applying these notions to cases of sexual harassment and sexual assault one can see why a presumption of innocence is a good policy even if the paradox were to create “presumption of guilt” for the accuser until she/he proved the accusation. The accuser suffers no penalty for making an accusation she cannot prove, unless the accusation is demonstratively frivolous, in which case the burden of proof shifts to the accused.

The principle of J’accuse (which contrary to the belief of many, is not the law in France – the Reign of Terror taught the French a lesson in that regard) where an accused must prove their innocence, harkens to the time of the Medieval Inquisition and totalitarian and authoritarian states in the present and recent past. It can only be justified based on providing more efficient administration and enforcement of mores and laws.

Dr. Cheng mentioned at one point that the potential harm that could result from certain activities should dictate the harshness of applying certain rules. A corollary to that notion is the burden of proof standard. In law, there is a continuum. “Probable cause” means there is sufficient evidence that an offense has occurred and a particular person or persons have committed it. This is the standard for arrests and searches.

“Preponderance of the evidence” means more likely than not, or 51% likelihood. This is the general civil standard. “Clear and convincing” is somewhat amorphous, but it would apply when an important right or interest might be impaired. Obtaining an education is one of those interests. The “beyond a reasonable doubt” is the criminal standard when the state may take an accused’s life, liberty, or property.

An example Dr. Cheng suggested in her interview was, in the case of driving under the influence of alcohol, zero tolerance for exceeding a statutory blood alcohol limit is appropriate. Her reasoning was that the consequences of a wreck caused by and an alcohol-impaired driver were potentially so catastrophic. But that rationale could apply to any violation. Anyway, the blood alcohol limit, in most states, only creates a presumption which might be sufficient probable cause for an arrest. Presumptions can be rebutted. Beyond a reasonable doubt is still the standard, as it should be.

Regarding sexual harassment and assault, there has been a recent controversy about the appropriate burden of proof, and whether an accuser should be subject to cross-examination by an accused or the accused’s lawyer. And how much inappropriate behavior should be tolerated before reporting it and imposing substantial penalties. I agree that is a knotty problem.

In the case of forcible rape, severe punishment is appropriate because of nature of the harm to the victim. Somewhat milder sanctions for non-consensual sex occasioned by overreaching or cognitive impairment might lie, but any unwelcome touching is technically assault and battery, which can be both a criminal offense and a civil cause of action.

More problematic is allegedly offensive verbal conduct and sexual innuendo. Freedom of expression, as a Constitutional guarantee requires a narrow standard. The legal standard articulated by the Supreme Court is that to be sanctionable by state action, such conduct must be severe and pervasive. When that standard applies is a fact issue that depends on the circumstances. Mere rude comments, especially when isolated, meet that standard could not meet. The speaker of isolated lewd comments might be reported and cautioned. But zero tolerance often equals zero common sense.

Dr. Cheng makes a valid point that logic is not necessarily a persuasive vehicle. Few of us measure up to Mr. Spock. Emotions have a significant role and will often override the most reasonable and logical argument. Medieval universities taught the trivium whose subjects were logic, rhetoric, and grammar. Logic teaches how to systematically reach conclusions; rhetoric teaches how to persuade through emotions. Grammar teaches how to articulate with precision. Aristotle’s approach was similar: ethos, and pathos; that is, logic, authority, and emotions.

Jury trials, and to a lesser extent, trials by judges alone, is that persuasion is a two-step process. First, an advocate must cause the fact-finder want to find for his side, and then suggest a legal reason for doing so. The emotional appeal to a judge must be much more subtle, usually couched in terms of public policy, or fear of higher court reversal, but it is important. The legal authority and the logic of its application complete the argument.

Amazon not so Amazing

All of the hand wringing over Amazon’s choosing Washington D.C. and New York City over the Texas location for its HQ2 is misplaced. Jeff Bezos did not choose the location for his second headquarters because of access to a supposed pool of talent or quality of life for his workers. He chose it for money and political access. New York and D.C. essentially bribed Amazon to locate in their environs, but there’s really more to it than that. If history is any guide to the future, it won’t be long before Amazon faces a serious antitrust problem. Little over a century ago the railroad robber barons, the steel tycoons, and the oil magnates enjoyed the rapid growth and fantastic profits similar to those Bezos and other tech companies have today. Their success provoked antitrust legislation and the breakup of the huge trusts and monopolies. The laws that ended the hegemony of monopolies are still on the books. Bezos has ingratiated himself with, and poised his company’s location to secure access to, the big political donors and lobbyists to forestall antitrust action against his company. DFW is better off without Amazon. There are better ways the assembled and projected bribe money can be spent to improve our area.

The 89 Years War

At the 11th hour of the 11th day of the 11th month one hundred years ago, the guns of August 1914 finally fell silent on the Western front in France and Belgium. This armistice, as it was called, was essentially a surrender of an exhausted German Empire to an exhausted France and Great Britain, the latter being saved by fresh American forces that intervened late. At the time, a large part of northeastern France and most of Belgium was still under German control, and no German territory had been invaded. It was thus not seen as a win for the western allies as much as a new, liberal government in Germany giving up. This was, the genesis of the “stab-in-the-back” theory advanced with success by the National Socialists. The truth is that there was no way Germany could continue the war. Its economy was devastated, the government was in chaos, its civilians were starving, it had suffered two million casualties, and there were over a million fresh American troops poised to invade. So a truce was made.

Beginning in 1926 to 1954, November 11 was officially celebrated as “Armistice Day” in the United States. It was changed to Veterans Day in 1954 to honor all of American Veterans. Certainly part of the impetus for the change was because it had become obvious that there is no reason to celebrate what amounted to a temporary truce. The day is still Armistice Day in France and Belgium and Remembrance Sunday (informally, “Poppy Day” for the red paper poppies that are traditionally worn) in Great Britain. Germany, understandably, does not celebrate the day, but has the Volkstrauertag — national day of mourning — on the Sunday closest to November 16.

What was called the Great War, and after 1945, World War I, was really the first phase of an 80 Years War. It began in August 1914, and only ended, according to some historians, in 1994, when the last Russian troops were withdrawn from Eastern Europe. That year, the Western victory was celebrated here in Dallas by a local restauranteur who obtained a bronze life-size statue of Vladimir Lenin from a factory in Russia that he erected on a pilaster in front of his establishment bearing the caption “America Won.” Whether that caption was accurate, or whether there is just another truce, remains to be seen.

The November armistice was followed by the Treaty of Versailles between Germany and the Western belligerents, and associated treaties with Germany’s allies. The Treaty was harsh, but not as harsh as the one Germany had imposed Russia. Nevertheless, economist John Maynard Keynes, who was a consultant to the Western allies at the Versailles peace conference, believed then the treaty was folly as it attempted to impose what amounted to a Carthaginian Peace. Even so, it might have been less odious to the German people had it not included the “war guilt clause” blaming Germany solely for the war. There had been enough blame to go around. As it turned out, it was, as Professor David Fromkin put it, the war to end all wars was interrupted by a peace to end all peace.

The war that began in 1914 is sometimes described as the attempted suicide of Western Civilization, or a civil war in the West. Scholars can argue about that, but, like all wars, it was about material resources — land and money, if you will. The first phase saw three European hereditary monarchies — Germany, Austria-Hungary and the Ottoman (Turkish) Empire — opposed by an alliance of the Russian Empire and colonialist empires of Great Britain and France. Others, including Italy and Japan, joined in on the side of Britain and France, though, except for Italy, did little actual fighting. The European belligerents engaged in a bloody stalemate for 3 ½ years before the United States, a constitutional republic, came to the colonial empires’ rescue at the 11th hour, almost literally.

The 1914-1918 conflict destroyed four hereditary empires and left the purported winning colonialists — Britain and France — seriously weakened. Arguably, the United States and Japan, later to be adversaries, came out stronger.

The 20 year truce period of this eight decades long war, ended with what has been commonly called World War II. In that phase, a re-alignment of parties occurred. Italy and Japan, both now authoritarian if not totalitarian dictatorships, allied with a totalitarian Nazi Germany. Initially the Soviet Russia, also totalitarian, aligned with Germany to partition Poland and gain hegemony in eastern Europe. Later Hitler double-crossed Stalin, and attacked the Soviet Union, and America entered the war after Pearl Harbor. There then existed an improbable alliance of a democratic republic, an imperial monarchy, and a communist dictatorship allied against three totalitarian and militaristic regimes.

This phase ended with a real Carthaginian Peace as to Japan, Germany, and Italy. These belligerents knew they had lost. Neither nation has been in a position to militarily menace the world since. Britain’s and France’s remaining colonial empires were collapsing, and were gone within two decades. The United States and the Soviet Union emerged bloody, but in fighting form. They soon became the principal adversaries in the third phase, termed the Cold War.

The Cold War was only cold in the sense that a direct, all-out conflict between the principal adversaries was avoided — thankfully, as both sides soon became nuclear armed. There was, however, plenty of fighting. The Korean War, brush fire wars between client states in the Third World, Vietnam, Afghanistan, various standoffs — the Korean DMZ and Berlin Wall — all produced casualties and destruction. But the ultimate weapons were economic. Collectivist communism could not prevail against free market capitalism. The communist system collapsed. The Berlin Wall fell, soon followed by the Soviet Union itself. Russia, the Soviet Union’s successor, withdrew its military from its former Eastern European bloc.

Some semblance of peace between the Great Powers now exists. Of course there is rivalry between and among the major states, but that does not amount to war where one side seeks to destroy the other as was the case formerly. Russia under Vladimir Putin wants to be dominant in its geographical sphere of influence, but is not seeking world domination. The military and otherwise existential conflict today is with militant Islam, not the great nation-states of the 20th Century.

Fools, Drunkards …..

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.


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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