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The United States Senate and the Presumption of Innocence



For what has a person profitted if he shall gain the U.S. Senate and House of Representatives and lose his own soul?

The highly emotional hearing in the Senate Judiciary Committee on September 27, 2018, listening to allegations by Dr. Christine Blasey Ford, a California academic psychologist, about a sexual assault on her by Judge Brett M. Kavanaugh in 1982, when she was 15 and he was 17, was more an occasion for a cynical display of partisan politics than a genuine search for truth on the part of the members of the committee.  It was essentially a political charade, a turbid ebb and flow, aimed at delay by Democrats of a vote on the nomination of Kavanaugh to be a member of the U.S. Supreme Court.

The starting problem is the divide and uncertainty about the validity of conflicting accounts by Ford and Kavanaugh of events 36 years ago.  That uncertainty was understood by Republican leaders.  President Donald Trump commented that Blasey Ford was a credible witness, compelling, a fine woman, and Kavanaugh’s testimony was powerful, honest, and riveting.  Republican majority leader Mitch McConnell thought both testimonies were “heartfelt.”  There was no definitive outcome, and both sides remained convinced of their own views.

Perhaps the intended FBI investigation will provide light relevant to the conflicting version of events.

Truth is elusive. We have been here before in fact and in fiction.  In 1950, the powerful Japanese film Rashomon, directed by Akira Kurosawa, told the story of a murdered samurai whose body was discovered in a forest.  At the murder investigation, four people and the ghost of the fifth gave different accounts of what happened and of possible motivation.  In this case of murder and rape, contradictory depictions emerged, and there was no way of knowing the truth, which indeed may never be known, nor was there any solution presented out of the multiple realities suggested.

In similar way, in the American film The Usual Suspects of 1995, obviously influenced by Rashomon, a suspect being interviewed by a police official unveils a complicated story with multiple revelations, all false and all derived from his own character.  What we see on screen, supposedly reflecting the truth about the legendary crime lord, Keyser Soze, does not correspond to the reality, as we find out.  The mixed conclusion is to suspect what we have seen.

There are legitimate differences in the validity of the presentations of Ford and Kavanaugh, but agreement is more likely on other factors.  One is that the hearing was not one of the finest hours in Senate history, and the conduct of a number of the senators was questionable.  The second factor is the virtual refusal to discuss the merits of the issue, since minds were already made up on a partisan basis.  We are familiar with Alice: “Sentence first, verdict afterwards…you’re nothing but a pack of cards.”  An axiom of democratic politics is that decision-making stems from listening to and adjudicating between conflicting sides of a dispute.  This was not the case for some senators who walked out of the hearing of the committee, nor for others who refused to vote on a motion to proceed.  This proclamation of absence must be one of the most bizarre interpretations of the Senate’s role of “advice and consent.”

In political argument, passion is to be expected.  Politics, as Max Weber wrote, takes both passion and perspective.  But gladiatorial displays, exemplified by Cory Booker, the would-be Spartacus and presidential contender from New Jersey, are more appropriate for the circus than the political arena.

In the present case, there remains behavior and statements that need scrutiny not only about the believability of allegations concerning Kavanaugh, but also about the actions and non-actions of some of the senators, especially the curious and controversial behavior of Democratic ranking member of the Judiciary Committee Dianne Feinstein, who had not revealed her knowledge of the allegations for several weeks and thus delayed Senate discussion of them, presumably for political partisan reasons.  Democrats objected that committee chair Senator Grassley was conducting the meeting in an autocratic way.

The third, and most important factor, is the lack of respect for the rules of the political game, such as prohibition of leaking of privileged information and, above all, disregard for crucial elements of the rule of law.

On July 9, 2018, President Donald Trump nominated Judge Brett M. Kavanaugh for the vacant seat on the Supreme Court.  Twenty minutes later, Senate minority leader Chuck Schumer announced that he and his fellow Democrats would do everything possible to derail the nomination: “I will oppose him with everything I’ve got.”  It is appropriate for politicians to approve or disapprove of policy out of philosophical conviction.  But it is not appropriate to rush to judgment without any examination of the alleged events or to ascribe guilt, even if expressed in cynical fashion, as Schumer did.  Later, with regard to the hearing in the Senate Judiciary Committee, when Kavanaugh faced allegations of sexual misconduct, he said Kavanaugh received “no presumption of innocence or guilt as a nominee seeking conformation.”  The absurd excuse for the equivocal statement was that the event was not a criminal trial, but “a fact-finding procedure.”

Irrespective of differing views of the allegations against Kavanaugh, what is most troubling is this disregard of or indifference toward a cardinal principle of the rule of law and presumption of innocence while in pursuit of political objectives, and, at an extreme, the politics of personal destruction.  It is astonishing that senators, perhaps lacking historical knowledge, need reminders of this basic principle.  The French Declaration of the Rights of Man and of the Citizen, August 26, 1789, states, Article 9, that “everyone is presumed innocent until declared guilty.”  The U.N. Universal Declaration of Human Rights, December 1948, states in Article 11, “Everyone charged with a personal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees for his defense.”

There are similar assertions in the same language in the document of the Council of Europe, “The Convention for the Protection of Human Rights and Fundamental Freedoms,” adopted in 1950 and entered into force in 1953 by the Council of Europe.  The principle is also endorsed in the December 1993 Constitution of Russia, Article 49: “everyone charged with a crime should be considered not guilty until his or her guilt has been proven.”

In the U.S., the Supreme Court in Coffin v. U.S., 1895, held that the principle that there is “a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”  Alexander Hamilton, Federalist 68, warned of the “talents for low intrigue and the little arts of popularity ” of some politicians.  It might be more useful for the FBI to conduct an investigation into senatorial understanding or lack of comprehension of the meaning of presumption of innocence along with the search for evidence of Kavanaugh’s culpability or innocence. (American Thinker)


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