You don’t need me to add to the opprobrium that has been justly hurled at Susan Collins for her miserable performance in the Ford-Kavanaugh drama. I do, however, want to focus on one issue that Collins raised that has an importance that goes well beyond this particular battle over the Supreme Court. Collins cited the importance of preserving the “presumption of innocence” as a justification for confirming Kavanaugh’s nomination. “I worry that departing from this presumption could lead to a lack of public faith in the judiciary.”

Departing from this presumption? Collins isn’t a lawyer, but that’s no excuse. There is no presumption of innocence for Supreme Court nominees. The presumption of innocence is a core concept of our criminal justice system. It aims to minimize the possibility that innocent defendants can be convicted and sent to jail. The confirmation process for a Supreme Court nominee isn’t a criminal proceeding. Kavanaugh was in no danger of going to jail. He was accused of an offense that was arguably disqualifying for a justice of the Court, but, unlike in criminal law, there is no generally accepted standard of proof for assessing those accusations. Since there is no such standard, we need to come up with one. By “we” I mean US Senators and the rest of us US citizens whom our senators are supposed to represent.

I am going to propose a standard that seems to turn a basic concept of our criminal justice system on its head. In a criminal proceeding, guilt must be proved beyond a reasonable doubt. Collins seems to think that if there is reasonable doubt about Kavanaugh’s guilt, he deserves confirmation. That’s wrong. She claims to want fairness—that is, justice—to Kavanaugh, and that is a worthy aspiration. But the issue of Kavanaugh’s candidacy is not mainly about justice for the candidate. It’s about the integrity and legitimacy of the Supreme Court. The mere possibility of giving a seat on the Court to someone who doesn’t belong there should be a matter of serious concern.

No, Kavanaugh hasn’t been found guilty beyond a reasonable doubt of sexual assault, or of perjury, but that high standard of evidence shouldn’t apply. If a candidate has been accused of disqualifying offenses, and if there is reasonable doubt about his innocence of those offenses, he should not be confirmed. Is that fair to the candidate? Maybe not, but, as I said, the integrity and legitimacy of the Court are more important than justice for a candidate who is in no danger of a criminal conviction.

My own view is that Kavanaugh is very probably guilty of the assault allegation and even more probably guilty of perjury. We can argue about the degree of probability, but I don’t think anyone can credibly claim that he is innocent beyond a reasonable doubt. (That hasn’t stopped Trump from making essentially that claim.) I don’t propose to send Kavanaugh to jail on that basis, but he should not be going to the Court.


One comment

  1. Alfred Wegener October 9, 2018 at 8:02 pm

    Well done, Tony. Good, clear thinking.

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