WSJ September 22, 2018
The new liberal standard turns American due process upside down.
By The Editorial Board | 844 words
“As Judge Kavanaugh stands to gain the lifetime privilege of serving on the country’s highest court, he has the burden of persuasion. And that is only fair.”—Anita Hill, Sept. 18, 2018
“Not only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed.”—Sen. Maize Hirono (D., Hawaii)
The last-minute accusation of sexual assault against Supreme Court nominee Brett Kavanaugh is an ugly spectacle by any measure. But if there is a silver lining, it is that the episode is providing an education for Americans on the new liberal standard of legal and political due process.
As Ms. Hill and Sen. Hirono aver, the Democratic standard for sexual-assault allegations is that they should be accepted as true merely for having been made. The accuser is assumed to be telling the truth because the accuser is a woman. The burden is on Mr. Kavanaugh to prove his innocence. If he cannot do so, then he is unfit to serve on the Court.
This turns American justice and due process upside down. The core tenet of Anglo-American law is that the burden of proof always rests with the person making the accusation. An accuser can’t doom someone’s freedom or career merely by making a charge.
The accuser has to prove the allegation in a court of law or in some other venue where the accused can challenge the facts. Otherwise we have a Jacobin system of justice in which “J’accuse” becomes the standard and anyone can be ruined on a whim or a vendetta.
Another core tenet of due process is that an accusation isn’t any more or less credible because of the gender, race, religion or ethnicity of who makes it. A woman can lie, as the Duke lacrosse players will tell you. Ms. Hirono’s standard of credibility by gender would have appalled the civil-rights campaigners of a half century ago who marched in part against Southern courts that treated the testimony of black Americans as inherently less credible than that of whites. Yet now the liberal heirs of those marchers want to impose a double standard of credibility by gender.
A third tenet of due process is the right to cross-examine an accuser. The point is to test an accuser’s facts and credibility, which is why we have an adversarial system. The denial of cross-examination is a major reason that campus panels adjudicating sexual-assault claims have become kangaroo courts.
It’s worth quoting from the Sixth Circuit Court of Appeals ruling this month in Doe v. Baum on a sexual-assault case at the University of Michigan.
“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth,” wrote Judge Amul Thapar. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”
Consider the limited facts of Christine Blasey Ford’s accusation against Judge Kavanaugh. It concerns an event some 36 years ago that she recalls in only partial detail. She remembers the alleged assault and rooms she entered with some specificity, but not the home where it occurred. She doesn’t know how she traveled to or from the home that evening.
She told no one about the incident for 30 years until a couples therapy session with her husband. Her therapist’s notes say there were four assailants but she says there were only two. Two of the three other people she says were at the drinking party that night say they know nothing about the party or the assault, and Mr. Kavanaugh denies it categorically.
Democrats claim that even asking questions about these facts is somehow an unfair attack on her as a woman. Her lawyer is demanding that Ms. Ford testify after Mr. Kavanaugh, and that only Senators ask questions—no doubt to bar Republicans from having a female special counsel ask those questions.
We’re told Ms. Ford even wants to bar any questions about why she waited so long to recall the alleged assault and who she consulted in finally going public this year. Such a process is designed to obscure the truth, not to discover it. None of these demands should be tolerable to Senators who care about finding the truth about a serious accusation.
We don’t doubt that Ms. Ford believes what she claims. But the set of facts she currently provides wouldn’t pass even the “preponderance of evidence”—or 50.01% evidence of guilt—test that prevails today on college campuses. If this is the extent of her evidence and it is allowed to defeat a Supreme Court nominee, a charge of sexual assault will become a killer political weapon regardless of facts. And the new American standard of due process will be the presumption of guilt.