The Corner

Law & the Courts

Senator Kafka (D-Ill.)

Inscription on the Supreme Court building in Washington, D.C. (Jonathan Ernst/Reuters)

Senator Durbin (D-IL) highlights the problem with the Democrats’ rhetoric on Kavanaugh:

Two of the words in this sentence are incompatible with one another: They are “alleged” and “survivor.” We say “alleged” in order to acknowledge that we do not know if a given accusation is true. To subsequently use a word that can only be applied when we know that accusation is true — in this case, “survivor” — is to flatly undermine that acknowledgment. Worse still, it is to push on into the realm of a common logical fallacy known as “begging the question.” That the topic here happens to be sexual assault — and that we are in the midst of a reckoning with that crime — is immaterial. It is logically preposterous to (1) recognize that a charge may be entirely false, and (2) demand that we treat the person making it — and the person on the end of it — as if it were proven. Alas, Senator Durbin, and many others, are doing just that.

Were the issue here, say, stabbing, I think Durbin would be able to grasp this. For example:

“I heard that Senator Durbin stabbed someone.”
“What’s your evidence? Who said that? What are the details of the charge?”
“How dare you ask for those things!”
“What? Why? We need to know if it’s true. Stabbing is a serious crime, and the accused is a U.S. Senator.”
“With your questions you are insulting Senator Durbin’s stab victims.”
“But, but . . . that’s exactly what we need to find out — whether there actually is a stab victim here.”
“Why are you pro-stabbing? And why won’t Durbin resign?”

It is fascinating how similar the “believe accusers!” people sound to the most reactionary “law and order” types in our society. How often have we heard some Joe Arpaio sort insist that, by insisting on robust due process and a broad presumption of innocence, the ACLU is “soft on crime,” or “insulting the victims,” or “hugging criminals.” How frequently have we watched the hang-’em-and-flog-’em brigade describe crucial parts of the justice system as “technicalities,” or instantly transmute “accused” into “guilty.” How often is appropriate skepticism treated as “denial.”

How far from this approach are Dick Durbin and co.? The answer is: Not far at all. How odd it has been to see these instincts take root in the Democratic party, replete with the same shoddy thinking, and an identical dose of obfuscatory righteous indignation. How disastrous it will be if they flower into our culture as a whole.

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