In the midst of the Democrats’ campaign to deny Brett Kavanaugh confirmation to the Supreme Court, Lawfare’s editor in chief, Benjamin Wittes, took to the pages of The Atlantic to argue that traditional concepts of due process were not applicable under the circumstances. Justice, he wrote, was merely an “optical” consideration, and in this case, “Kavanaugh himself bears the burden of proof.”
This upending of liberal ideals had nothing to do with the veracity of Christine Blasey Ford’s accusations — opaque, decades old, and unprovable — and everything to do with the accused party, upon whom, Wittes noted, we were about to “bestow . . . an immense honor that comes with great power.”
We don’t know if, in 1993, presidential hopeful Joe Biden sexually assaulted a woman named Tara Reade by pressing her up against a wall and digitally penetrating her without her consent. But under Wittes’s standard, it shouldn’t matter. Indeed, that we do not know is all that we need to know. No person in America is accorded a more “immense honor” or more “great power” than the president. Surely, as with Kavanaugh, the existence of the accusation is disqualifying?
Apparently not, for ideals of justice seem to be quite malleable these days. Journalistic norms, too. The same media that relayed every unsubstantiated and tawdry rumor during the Kavanaugh confirmation, and that happily transmitted the Michael Avenatti–produced gang-rape smear, is treating Reade’s story quite differently. Why, we might ask, isn’t Reade receiving the same coverage as E. Jean Carroll, a woman who accused Donald Trump of assaulting her in 1995 or 1996 at a Bergdorf Goodman store in Manhattan? Virtually every major news organization let Carroll tell her story. Reade has been trying to tell hers for decades. Believe women?
Indeed, to understand how to proceed, the media has only to take the advice of Biden, who two years ago argued that society had an obligation to presume that women who come forward with allegations of sexual assault should be believed irrespective of how flimsy that accusations may be:
For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.
Democrats should also be following this advice. Back in 2018, you will remember hearing the party arguing incessantly that “due process” was only a legal right, and that it was inoperative in Kavanaugh’s case because a Supreme Court hearing was nothing more than a “job interview.” Well, so is the presidency. A presidential election is just a job interview with the American voter. There are plenty of other candidates, no doubt, willing to take Biden’s place in the race. In fact, one major candidate is still in the race. (Granted, Bernie Sanders once wrote a creepy essay describing the sensuality of rape, but let’s set that aside for now.)
During the Kavanaugh hearings, Jeffrey Toobin, CNN’s “chief legal analyst,” noted that “40 percent of the Republican appointees to the Supreme Court have been credibly accused of sexual misconduct.” Using this standard, if Biden wins in November, we will be able to say that two of the last three Democrats in office have been “credibly accused of sexual misconduct.”
Like many others, however, Toobin wants to have it both ways. Simultaneously, he argues that any genuine due process was impossible — and, by the “believe all women” standard, even undesirable — yet also describes Blasey Ford as “credible.” But if the integrity of the accuser and the plausibility of her claims matter in determining the credibility of her allegations — and I certainly believe they should — then we are in a due-process debate. And we can really only determine the “credibility” of an accuser who offers vague accusations if we question them.
Embarrassingly for Biden, he has argued that such questioning is per se inappropriate:
What should happen is the woman should be given the benefit of the doubt and not be, you know, abused again by the system. I hope that they understand what courage it takes for someone to come forward and relive what they believe happened to them and let them state it, but treat her with respect.
If this is what “should happen,” why don’t Democrats practice it — and why doesn’t Biden himself step aside in order to live by the standards he championed only two years ago?
We know why.