Judge Delfidius: Can anyone, most mighty Caesar, ever be found guilty if it be enough to deny the charge?
Emperor Julian: Can anyone be proved innocent if it be enough to have accused him?
When the Byzantine emperor Julian uttered those words in about 350 A.D., the understanding of the need for the presumption of innocence was already ancient. The Code of Hammurabi expressed it in about 1754 B.C., and it likely wasn’t the first.
And yet, almost four millennia after the Babylonian Emperor’s reign, the presumption of innocence is still under siege.
Senate Democrats have announced their unwavering support for the notion that naked allegations, unsupported by corroborating evidence, should be sufficient to deny a position on the Supreme Court to a highly qualified jurist.
In short, they do not afford Judge Kavanaugh the presumption of innocence that people have fought for thousands of years to establish and maintain, and that is the cornerstone of due process of law.
Now, Kavanaugh’s opponents will argue that hearings before the Judiciary Committee are neither criminal nor civil in nature, that Senators are not judges and the committee chamber is not a courtroom.
As merely quasi-legal proceedings, senators are not bound by precepts that govern judicial matters. That is true. But the presumption of innocence is far more than simply a rule of judicial procedure. It’s a rule of everyday human interaction. (Alan Dershowitz makes the same point here.)
Indeed, the old Roman maxim “ei incumbit probatio qui dicit, non qui negat,” i.e., “the burden of proof is on the one who asserts, not on one who denies,” captures the matter nicely.
If Mary tells Ann that their mutual friend Jane abuses her children, Ann is right to adopt a “wait and see” attitude. Ann would want some hard evidence of what Mary says before she condemns Jane in her mind. To do otherwise would risk accepting slander as the truth, and her relationship with Jane would suffer. Ann’s not a judge; she’s just an everyday person exercising appropriate skepticism. Her demand of proof is a matter of fundamental fairness in the conduct of her relationships.
It is that very fundamental fairness that Democrats have denied Judge Kavanaugh. In doing so, they abandon both millennia of law and the type of decency most people instinctively afford others.
This is the more remarkable because, in fact, Judge Kavanaugh has done about as much to prove a negative as possible. How can he prove he wasn’t at the party and that he didn’t do what Dr. Ford alleges?
He and others have shown that it’s likely there was no such party and, if there were, he didn’t attend. His daybook indicates no such event and Dr. Ford’s lifelong friend, supposedly present, has said she’s never attended a party at which Brett Kavanaugh was present. And, of course, all four people Ford claims witnessed the incident say either that it didn’t happen or that they have no memory of it.
And Ford can’t tell us when the incident happened, where it happened, how she arrived at the party or how she got home. For 30 years, she told no one, not a friend, not her parents, not a teacher, not a school counselor, no one. As a dedicated anti-Trumper, she has a motive to embroider the truth. As the beneficiary of a GoFundMe fund that now totals over $1 million, she has an incentive.
The Democrats’ position would — if adopted as a general rule — all but destroy our system of governance.
How would any nominee for any position in government ever secure the job if it were sufficient to defeat him/her that such an allegation was made? And, of course, there’s nothing about the Democrats’ position that applies strictly to government jobs. Indeed, as countless men in the private sector have learned, allegations alone can lead to ruin.
The Democrats’ take on the Kavanaugh nomination is an outrage against the very concept of progress, of the potential of humankind to improve ourselves. After 4,000 years, one might think the presumption of innocence would be unassailable.
But for some, that bedrock of jurisprudence and the conduct of everyday affairs must be swept aside to achieve the shortest of short-term goals — the defeat of the nomination of a thoroughly decent man and capable judge.
If those opposed to his confirmation succeed, Brett Kavanaugh will not be the last — Republican or Democrat — to fall in this war that should have ended centuries ago.
Robert Franklin is a Texas attorney.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.