The remarks by high-profile women and Democrats of both genders regarding US Supreme Court nominee Brett Kavanaugh should greatly alarm anyone concerned with basic fairness and due process.
Anita Hill, who testified in 1991 to being sexually harassed by now-Supreme Court Justice Clarence Thomas, recently said “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.”
Democratic Senator Maize Hirono of Hawaii added “Not only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed.” She also told men to “just shut up and step up” regarding Christine Blasey Ford’s sexual assault allegations against Kavanaugh.
As the Wall Street Journal editors write, the new “Democratic standard for sexual-assault allegations is that they should be accepted as true merely for having been made.” Judge Kavanaugh must prove his innocence.
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.