Bench Memos

Law & the Courts

Losing the Presumption of Innocence

Supreme Court nominee Judge Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee, September 6, 2018. (Alex Wroblewski/Reuters)

More than a century ago, the Supreme Court described a principle that it called “undoubted, axiomatic and elementary.” It is, the Court said, “unquestioned in the textbooks” and can be traced all the way back to ancient Greece and Rome. This fundamental principle — the presumption of innocence — may be one of the casualties of the campaign against Supreme Court nominee Brett Kavanaugh.

I wish that were an exaggeration, but in a CNN interview on September 23, Senator Mazie Hirono (D., Hawaii) refused to acknowledge that this principle — axiomatic, elementary, and ancient though it may be — applies to Kavanaugh at all.

A less radical position would say that, while Kavanaugh might have been presumed innocent like anyone else, the evidence is enough to erase that presumption. That might be less radical but, in Kavanaugh’s case at least, it won’t fly.

Two women accuse Kavanaugh of sexual misconduct sometime in the early 1980s, one while Kavanaugh was a high-school student, the other when he was a freshman at Yale. The judge has repeatedly, categorically, and unequivocally denied these accusations. More than that, though, he has done so to Senate Judiciary Committee investigators. If he were to lie to them, he would be committing a federal felony.

The first accuser, Dr. Christine Ford, says Kavanaugh sexually assaulted her at a party. A summary of “what we know” about these allegations at says: “Ford admits that there are key details about the incident that she does not remember,” including the “location of the house.” Each of the four people Ford has named as attending this party deny being there. Therapist notes three decades later describe an incident but do not name Kavanaugh.

The second accuser, Deborah Ramirez, says Kavanaugh exposed himself to her at a party. According to The New Yorker, she “acknowledged that there are significant gaps in her memories of the evening.” Both The New Yorker and the New York Times spoke to several dozen people, but could find no one to substantiate Ramirez’s accusation. According to The New Yorker, at least seven people she named deny they attended the party in question, including a woman who said that she and Ramirez had been “best friends.”

Beyond this lack of evidence for the accusations themselves, they are inconsistent with evidence about Kavanaugh from and since the time of these alleged incidents. Hundreds of people, including dozens of women (and even former girlfriends), who have known him for decades offer a completely consistent description of Kavanaugh as a decent, respectful, honorable person. No one says they saw him, at any time and under any circumstances, do anything like what Ford and Ramirez claim.

This brief rundown shows, I think, that the facts we know do not overcome the presumption of innocence. The only thing left for the Left is to say that Kavanaugh simply doesn’t get the presumption of innocence in the first place.

That is Hirono’s position. She is questioning the “unquestioned” presumption of innocence itself, at least in Kavanaugh’s case. But why single him out? Hirono is not clear on that, but referred to “how he approaches cases,” that “he’s very outcome-driven,” and is “against women’s reproductive choice.” This makes it sound like the presumption of innocence belongs only to those who agree with her on certain issues or who, as judges, would decide cases to her liking. Those with whom she disagrees are guilty until proven innocent (and good luck with that).

If the presumption of innocence depends on one’s personal views, then we have much deeper problems as a country and a society to deal with. What’s next, parceling out the freedom of speech based on its content or the right to keep and bear arms based on need? Oh that’s right, the Left is pushing for those as well.

In 1850, the Supreme Judicial Court of Massachusetts said: “All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty.”

Every person.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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