Democrats Rediscover Due Process. About Time.

By Shaun Tan

Founder, Editor-in-Chief, and Staff Writer

19/5/2020

What went around has come around. When then Supreme Court nominee Brett Kavanaugh was accused of sexual misconduct in 2018, Democrats said his accuser, Christine Blasey Ford, should be believed, and that Kavanaugh should be disqualified. Now that their own presidential nominee (and best hope for unseating Donald Trump), Joe Biden, is being accused of sexual misconduct, they’re being called hypocritical for not believing his accuser, Tara Reade, and dumping Biden.

It’s amusing to see the intellectual contortions some people are going through to justify this inconsistency. Michelle Goldberg, a columnist at the New York Times, for example, wrote that Reade is tainted by political bias and that her story is compromised by “many ambiguities.” But of course Ford, by her own lawyer’s account, seems to have been tainted by political bias too, and her story was also compromised by ambiguities, including ambiguity over where and when the party Kavanaugh supposedly tried to rape her at was held, or who else attended it.

Reade’s claims do seem dubious. “I wanted to believe Reade when she first came to me,” concluded Laura McGann, editorial director at Vox, who investigated Reade’s story, “and I worked hard to find the evidence to make certain others would believe her, too. I couldn’t find it.” But by their own professed standards, Democrats should reflexively believe her anyway because she’s a “survivor.” No, the standards Democrats are holding Biden to are indeed different from the ones they applied to Kavanaugh. Instead of trying to square that circle, they should just acknowledge that their position on Kavanaugh was indefensible and unjust, and try to stake out a better one.

Biden (Picture Credit: Phil Roeder)

If there’s something that encapsulates the insanity of Democrats (and leftists) during the Kavanaugh fiasco, it was the slogans “Believe Women” and “Believe Survivors/Victims.” The first, insofar as it means “Believe women over men” (which it usually does), is blatantly sexist. The second is circular. If someone is really a survivor or victim, that means he or she’s telling the truth about being sexually assaulted or harassed, so obviously that person should be believed by everyone. The problem is it’s often impossible or difficult to know who’s telling the truth, at least not without a careful investigation or trial, which is why we have those things in the first place. In an article in the New Yorker, Harvard Law School professor Jeannie Suk Gersen criticized the “near religious teaching among many people today that if you are against sexual assault, then you must always believe individuals who say they have been assaulted.” She lamented how “[e]xamining evidence and concluding that a particular accuser is not indeed a survivor, or a particular accused is not an assailant, is a sin that reveals that one is a rape denier, or biased in favor of perpetrators.”

Anti-Kavanaugh protestors, 27^th September 2018 (Picture Credit: Mobilus In Mobili)

But why would a woman accuse someone of sexual misconduct if it hadn’t actually happened? It could be many things: it could be because she was mentally unstable, or because she disliked that person (or his politics) and wanted to mess with him, or because she wanted attention, or because she was bored, or because she wanted to “feel part of something bigger than herself,” or because of any number of other base reasons.

A few years ago, I was accused of sexual harassment by a colleague and fired because of it. Her allegation was so ridiculous and baseless that when I then sued my former company over it, it apparently fired both the girl who accused me and the manager who fired me, and completely abandoned the position that I had sexually harassed anyone in the first place. Since I never knew my accuser well, it’s difficult to speculate on her motives, but my best guess is that she disliked me and decided to lie about me just to give me a hard time, and/or that she’s a bit nuts.

This is not to say, of course, that women are not reliable or trustworthy, only that they are human, that just like men, they can be motivated by animus and self-interest; just like men, they are capable of craziness and envy and duplicity and manipulation. “My fundamental position is that women are human beings,” the author and feminist Margaret Atwood wrote in response to the Me Too movement, “with the full range of saintly and demonic behaviors this entails, including criminal ones. They’re not angels, incapable of wrongdoing. If they were, we wouldn’t need a legal system.”

This is not to say that women are not reliable or trustworthy, only that they are human, that just like men, they can be motivated by animus and self-interest.

The truth is the position the Democrats took during the Kavanaugh episode was completely irrational. Reade’s allegations stink of cynical opportunism because they refer to something that supposedly happened 27 years ago and she decided to accuse Biden of sexual assault not during all his other years in public office, not when he was just one of several presidential candidates, but only now when he’s become the presumptive presidential nominee. But Ford’s allegations stank of cynical opportunism too. They referred to something that supposedly happened 36 years prior and she decided to accuse Kavanaugh of attempted rape not during all his other years in public office, but only when he was nominated to the Supreme Court. Worse still, when she brought her story to Democratic Senator Dianne Feinstein, instead of informing the Senate Judiciary Committee there and then, Feinstein chose to sit on that bombshell before ambushing Kavanaugh with it at the eleventh hour in an apparent ploy to derail his nomination and push filling the Supreme Court vacancy until after the midterm elections when the Democrats might have had more say.

Then there was the fact that several Democratic senators declared they knew Kavanaugh did what Ford alleged before even bothering to hear the testimony of either party, thus making a mockery of their duty to act impartially – any judge who committed herself to a position like that in advance would be forced to recuse. When Ford finally testified, her allegation, and many of the important details related to it, could not be corroborated, not even by her friends, and remain uncorroborated to this day. (Later, Ford declined to continue to pursue her allegations against Kavanaugh, suggesting she had no confidence an investigation could corroborate her story even with an indefinite timeframe, which makes Democratic calls for a longer investigation seem even more disingenuous.) After Kavanaugh was eventually confirmed, Democrats and leftists went on to condemn Jeff Flake and Susan Collins for voting in his favor, even though they called for an FBI investigation into Ford’s allegations within a reasonable timeframe, made an effort to listen and to weigh the evidence carefully before coming to a decision, and were perhaps the only two senators who acted with principle in that whole sordid affair.

To be fair, partisans on both sides behaved disgracefully. On the one side, there were people suggesting that the fact that Kavanaugh was a privileged white male jock made him less credible or deserving of sympathy than Ford. On the other, there were people suggesting that even if Kavanaugh did try to rape Ford back then, it wouldn’t matter. And just as it was absurd for Democrats and their supporters to act like they knew Kavanaugh was guilty, it was equally absurd for Republicans and their supporters to act like they knew he was innocent. (Anyone who thinks they can watch Kavanaugh and Ford on tv for a few hours and from that discern what happened between them in a room in a house in Maryland 36 years ago, with no recordings or corroborating witnesses, is downright delusional.)

Kavanaugh (Picture Credit: Ninian Reid)

If you can’t determine if someone committed an offence, though, you should presume they’re innocent and not punish them or deny them opportunities based on unproven allegations. Because an allegation is just an allegation – one of an infinite number of allegations that can be made, for spite or profit – and is meaningless unless it’s substantiated. “[I]f suspicion based on allegation – even or especially ‘believable’ allegations – becomes a sufficient basis for disqualification, it will create overpowering political incentives to discover, produce, or manufacture allegations in the hopes that something sticks,” wrote Bret Stephens, a columnist at the New York Times. Why should the Republicans have withdrawn Kavanaugh’s nomination when doing so under the circumstances would have encouraged Democrats to simply come up with sexual misconduct allegations, however flimsy, against the next person they nominated to the Supreme Court to disqualify him as well? And if that becomes a norm, it would create perverse incentives in the workplace too. An ambitious subordinate could accuse her superior of sexual misconduct to get his job; someone gunning for a position could ensure he gets it by anonymously accusing rival candidates of sexual misconduct – something like this actually happened, by the way. Bringing a sexual misconduct allegation should be a way for real victims to seek justice; it cannot be allowed to become a tool for political or vocational assassination.

Bringing a sexual misconduct allegation cannot be allowed to become a tool for political or vocational assassination.

The tragedy is that there need not be a trade off between the rights of the accuser and the accused, between fighting sexual misconduct and respect for procedural fairness and proportionality. If someone is accused of sexual misconduct, the allegation should be heard and evaluated. If it sounds serious, there should be a proper investigation, and both sides should have the opportunity to challenge evidence or testimony and to produce supporting witnesses. People should then weigh the claim as a whole before coming to any conclusions. The presumption of innocence and due process aren’t just legal concepts – they’re the foundation of any free and just society.

And yet, there’s hope. Hear that? That’s the sound of Democrats not demanding Biden suspend his campaign. Maybe they’ve remembered that they’re supposed to be the party most concerned with the rights of the accused. Maybe they’ve rediscovered the value of due process and realized the folly of their previous position. This revelation might be prompted by partisan politics and the (wholly reasonable) desire to end the horror of the Trump presidency, and it might be way overdue, but whatever the case, I say

Better late than never.