Brett Kavanaugh And The Delusion Of Due Process

There’s a kind of opinion writing that uses a simple, universal concept with a definite, technical meaning at its core but also has looser, metaphorical meanings on its edges. Because of their flexibility, such terms can be used to strengthen or obfuscate ideological positions. This strategy is often used with words that have definite meanings in specific contexts but can have looser meanings in other contexts. “First Amendment” and “freedom of speech” are two examples. The meaning and scope of such words in everyday use is more broad than how the terms are understood in our courts. But that doesn’t stop culture warriors from weaponizing them in order to push political agendas.

Which is what the Wall Street Journal editorial board does with “due process”:

“The last-minute accusation of sexual assault against Supreme Court nominee Brett Kavanaugh is an ugly spectacle by any measure. But if there is a silver lining, it is that the episode is providing an education for Americans on the new liberal standard of legal and political due process.

As Ms. Hill and Sen. Hirono aver, the Democratic standard for sexual-assault allegations is that they should be accepted as true merely for having been made. The accuser is assumed to be telling the truth because the accuser is a woman. The burden is on Mr. Kavanaugh to prove his innocence. If he cannot do so, then he is unfit to serve on the Court.
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.”

“The Presumption of Guilt” | The Wall Street Journal | Editorial Board | 09/21/2018

Fortunately, there’s a clear understanding of “due process” with which we can gauge the quality of the argument put forth by the writers of The Wall Street Journal op-ed:

“Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.”

“Due Process” | Wikipedia

Due process is about the relationship between the state and a citizen in terms of the former’s authority and the latter’s rights. But the Kavanaugh confirmation hearing has nothing to do with a clear, definite understanding of due process. The confirmation process is a political, not a legal procedure, slapped together by Congressional staffers. The stakes may be high in this process, but there are no rules established by law to govern them. General notions of “fairness” may be more appropriate when discussing how Kavanaugh should be treated, but “due process” isn’t required to be one of them.

From both sides of the ideological spectrum our political culture has unmoored “due process” from its denotation to such an extent that the average American thinks it’s inherently fair to get his steak free because his waiter dropped it on its way to his table.

Similarly, Republicans in general and The Wall Street Journal quite specifically have been dealing from the bottom of the deck ever since Christine Blasey Ford’s assault claims surfaced. Both are spinning “due process” as a legitimate, legal property of the court of public opinion, where it doesn’t matter at all. Not only does The Wall Street Journal’s editorial board assume it does matter, it also doesn’t expect the average person to question the underlying (false) premises of its claim that it does matter. This, despite the fact that there clearly are no “core tenets” of due process that apply to an investigation during a Senate judicial confirmation hearing.

Consequently, the due process The Wall Street Journal is talking about and arguing for is a myth.


IMAGE SOURCE: supreme-court-546279_1920 (creative commons)

One thought on “Brett Kavanaugh And The Delusion Of Due Process

  1. A very logical argument that I agree with. The rotating, 18 year, term limit for justices could go a long way towards establishing core tenets in the nominating process of future justices. And since the best, least biased candidate for the job is always preferable, minimum standards vis a vis age, education, internships, experience, writings and public statements, all of which should be made publicly available, sjould be established. If necessary, with a constitutional amendment.


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