Justice Denied

The race to the bottom proceeds apace. Now Donald J Trump has some serious competition for being the most contemptible politician of the year.  That competitor is the ranking member of the Senate Judiciary Committee, Diane Feinstein (D, CA).  While the FBI was conducting background checks on Brett Kavanaugh, Senator Feinstein received and sat on a charge that  Judge Kavanaugh, when he was 17, attempted to rape a 15 year old girl. Most of the sane world would think that might be worth looking into post haste. 

Not Senator Feinstein.  The first order of business was to make sure that the lawyer the accuser hired was a Democratic Party activist. Then, at the very last minute, the allegation was leaked to the press, guaranteeing that any inquiry would be a public spectacle on the order of the Salem Witch Trials. And sure enough, all the Democrats on the Committee—every last one—announced that they believed the accuser before the accused even spoke. Not only that, several Democratic Senators, including Majority Leader Chuck Schumer (Harvard Law, 1974) and Chris Coons (Yale Law, 1992) announced that the burden of proof rested not on the accuser, but the accused. 

This despite, or maybe because of, the fact that the accuser says she does not know when the attack happened, the address where it happened, how she got there or how she got home. Moreover, none of the people she placed at the scene can corroborate her story. In fact, all of them deny that it happened at all. Additionally, a self-identified very close female friend of hers whom she placed at the scene says that (1) she wasn’t there (2) doesn’t know Brett Kavanaugh anyway, and never met him. 

So, Judge Kavanaugh is left with the impossible task of proving he did not commit a criminal act on some unspecified date, at some unspecified time, at some unspecified location. Because now the presumption of innocence has been replaced with the presumption of guilt. Especially so if the accused is a white male and the accuser is female and should therefore be believed. 

Committee Democrats argued that the hearing was not a trial, but a job interview. Consequently, normal standards of due process do not apply. This, of course, is nonsense. The assumption of due process permeates, or at least used to permeate, daily life, including job interviews. Does anybody seriously believe that equal treatment under the rules does not, or should not, apply in the daily activities of life? That there should be separate rules and operating standards for different classes of people? That it’s OK to deny due process to job or credit applicants? Apparently Committee Democrats do.  

Ritual Denunciation and Investigation

What we have here is not a search for truth, but a ritual denunciation designed to humiliate and silence  skeptics of progressive pieties. Or as Democratic Senator Mazie Hirono (Georgetown Law, 1978) so delicately put it “And I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.”  Note: For a change. Presumed guilty.

So now that the accused has been declared guilty, it is time for an investigation. Or rather, another investigation. This despite the fact that the ranking member kept the accusation hidden so it couldn’t be investigated for a month. Nevertheless another investigation has been demanded by Committee Democrats even though they have already announced they are going to oppose the nominee anyway.  Further it is crystal clear, or ought to be, that another investigation will not, cannot, establish a single substantive clarifying fact with respect to the question.  How could it?

The FBI in its investigation will take statements from the parties identified by Professor Ford as having been at the party where she claims to have been assaulted by Brett Kavanaugh. But those parties have already given statements under penalty of felony. And those statements contradict Professor Ford’s testimony. They say either that they did not attend any such party, or that nothing untoward happened. If one of those witnesses were to change his (or her) story why would that make them a credible witness for the accuser?  Why are they not credible now? 

The answer is simple. They haven’t produced the answer Committee Democrats want to hear. So now it’s time to shift the goal posts. Senator Cory Booker  (Yale Law, 1997) went so far as to argue that those who do not oppose Kavanaugh are simply “complicit in evil”. Beyond that, Democratic Committee member tactics included arguing that Kavanaugh routinely drank himself into a stupor, so much so that he couldn’t remember his various rape attempts; they included unsubstantiated (and naturally last minute) charges that he drunkenly exposed himself during a bachannal in his Yale dormitory, and that he and his friends participated in gang rapes. Surprisingly enough, these charges were unearthed at the last minute by lawyers who are activists in the Democratic Party. 

Delay, Delay, Delay

Now we are faced with another delay—this time one week—so the FBI can conduct its umpteenth investigation. The investigation will consist of interviews which will be forwarded to the Judiciary Committee. At which point one of two things will happen. Either the interviewees will stick to their stories which flatly contradict Dr. Ford’s testimony, or they will change their stories thus destroying their credibility. Neither case is helpful to Professor Ford’s case. 

Inevitably, when the results of the investigation arrive, Committee Democrats are going to argue that the investigation was rushed or incomplete. They will probably ask for more time to study the report, or perhaps come up with another list of witnesses to be interviewed. Anything to delay a vote on the nomination until the mid-term elections. Because that is the goal and always has been. 

Justice Denied

We will never know the truth of what, if anything, happened with respect to the sexual assault that Professor Ford alleges. But there are some things we do know. One is that Professor Ford’s story, which never would have made it into a court of law, was never seriously vetted. Neither was her credibility. Another is that if she was assaulted by Kavanaugh, or someone else, justice will never be done. Neither will Judge Kavanaugh, assuming he is innocent, see justice done. His name and reputation have been deliberately and  irreparably harmed as part of a conscious strategy employed by Committee Democrats and their allies. 

Most importantly, for those who choose not to turn a blind eye, it is clear to see that the leaders of the Democratic Party, many of whom went to the nation’s finest law schools, have no interest at all in the pursuit of truth or justice. They have clearly demonstrated that for them  justice is not blind; ideological adversaries are not to be granted due process; the presumption of innocence is to be applied selectively; adversaries are evil and deserve to be destroyed. 

In the matter of the Kavanaugh nomination Committee Democrats have strayed far outside the democratic norms that they claim to hold so dear. They have fundamentally inverted political-legal norms and rules to designed to protect individuals from the arbitrary and capricious use of governmental power. In so doing they have displayed a totalitarian mindset that should be disturbing to all—including those who profess to be disturbed at President Trump’s erratic and authoritarian behavior. Their behavior suggests that their true concern is not with  authoritarian power per se, but the person exercising it. 

JFB

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Joe Benning