Bench Memos

Law & the Courts

A Little Perspective on the Presumption of Innocence

Democrats say that Judge Brett Kavanaugh should not be presumed innocent. We’ve heard more and more of this as the lack of support for Dr. Christine Blasey Ford’s account becomes increasingly clear. Perhaps most prominent among those rejecting the presumption of Judge Kavanaugh’s innocence are Senators Mazie Hirono and, in a press conference today, Chuck Schumer. After all, they maintain, this is not a legal proceeding.

It’s correct that Senate nomination hearings are not legal proceedings. But that’s not the point. The presumption of innocence applies to the courtroom setting precisely because it is how we think about decency and fairness in our broader culture and society.

We expect people to prove a point they want to make in just about every known cultural context and every mode of social interaction. Scientists use especially rigorous standards to prove a hypothesis before accepting it. Western religions, all the way back to the birth of Judaism and Christianity, decry the use of unsubstantiated and gratuitous accusations as a grave sin.

It is even a fixture in everyday conversation: we do not presume that something has happened until we see evidence supporting it, and when there is conflicting evidence, we weigh it to reach a conclusion.

In short, the courtroom setting is not all that unique: It simply applies rules that recognize human nature and stem from the most basic human instincts. It might be inconvenient for Democrat senators who seek to engage in smear tactics to invoke the presumption of innocence, but it is a sacred American value.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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