Home Op/Ed The Kavanaugh Hearing: The Balkanization of the US Legal System

The Kavanaugh Hearing: The Balkanization of the US Legal System

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Note: The opinions and comments stated in the following article, and views expressed by any contributor to In Homeland Security, do not represent the views of American Military University, American Public University System, its management or employees.

By John Ubaldi
Contributor, In Homeland Security

The most cherished of all the principles of the American judicial system is that a person is “innocent until proven guilty.” The burden of proof is placed squarely on the person bringing the accusation.

Unfortunately, this most sacred of all rights has been discarded as the nation confronts Judge Brett Kavanaugh’s potential confirmation to the U.S. Supreme Court.

At this time, we have witnessed a distinct paradox regarding the presumption of innocence because that right contrasts with the social norms articulated by the #MeToo movement. There are some sections of the population who continuously state that all accusers of sexual assault must and should be believed, regardless of due process and what the accused has to say.

Fragmentation of US Legal System AKA Balkanization

Our nation is now witnessing a type of Balkanization as individuals form collective groups and show utter hostility to people who disagree with them, while never showing facts to support their conclusions. This political Balkanization is also bleeding into the U.S. legal system.

The Balkanization of the legal system has even corrupted one of our most prestigious law schools. Yale Law School recently allowed 20 faculty members to cancel or reschedule classes so that their students could protest the Kavanaugh nomination.

Yale Law School Supports Ford against Alumnus

If Yale Law School is now instructing its students to skip class to protest a Supreme Court nominee, it’s worth remembering that any of Yale’s current student body could well become future leaders in our legal profession. A Yale student could even be nominated to serve on the Supreme Court.

The message apparently being taught at Yale is that the concepts of “innocent until proven guilty” and “the burden of proof” have been discarded. Prejudging the outcome of any legal proceeding – without ever hearing testimony or viewing any corroborating evidence to back up the alleged claim – has become the norm. If this is the new legal standard advanced by Yale Law School, then hundreds of years of legal jurisprudence sacred to the American system  is in jeopardy.

Media Sources Have Chosen Sides for and against Kavanaugh

Most of the media – which is supposed to be unbiased and independent from the political establishment – has waded into this judiciary morass and chosen sides. Most in the media unabashedly believe Kavanaugh’s accuser, Dr. . Many media outlets report immediately any salacious accusations without doing the very basics in ethical factual corroboration.

Let’s also consider an incident on NBC’s “Meet the Press” last month, prior to the heated debate on Capitol Hill. Senator Patty Murray (D-WA) remarked to host Chuck Todd that “I think it’s really important, in this time, in this day, that we recognize when women speak out, that we should presume that they are innocent.”

Is Kavanaugh’s Examination Truly Objective?

It’s strange when those advocating impartiality have themselves prejudged the allegation by  not believing Kavanaugh, even before the proceedings began. It has been repeatedly stated that the Senate is not a court of law, but Republican and Democrat senators are supposed to provide a fair and unbiased hearing, especially since the allegation is as serious as attempted rape.

The hearing looked anything but fair. Constitutional scholar Jonathan Turley of George Washington University remarked that the touchstone of legal process is neutral, consistent and fair review. That definition means no one has an advantage because of who they are, what they represent or what they allege. The law is objective and, yes, blind.

Since the allegations against Kavanaugh surfaced, lawmakers on Capitol Hill and some media commentators have prejudged the guilt of Kavanaugh by strongly insisting that Ford “has a right to be believed.”

Hawaii’s Democratic Sen. Mazie Hirono was emphatic in saying that when a woman alleges abuse, she “needs to be believed.” Men should “just shut up and step up,” she says. This attitude is perplexing.

The usual approach in a Senate hearing on a Supreme Court nominee is for lawmakers to ask fair and open-minded questions. But Hirono’s statements show that the opposite approach can apparently be employed too, with the implication that Kavanaugh was guilty before any investigation or questioning.

US Senate Has Responsibility to Provide Unbiased Hearing

The Senate has a responsibility to ensure Ford has the right to be heard and treated fairly. She and Kavanaugh should not be believed based solely on an allegation or denial, but on the evidence presented.

Once these allegations surfaced, some U.S. senators automatically rallied to her side, stating unequivocally that they believed her. Those senators included Minority Leader Chuck Schumer (D-NY).

Even former Democratic presidential candidate Hillary Clinton waded into the fray. She said, “I want to send a message to every survivor of sexual assault…You have the right to be believed and we’re with you.”

But what standards should be used to prevent bias? Both Ford and Kavanaugh are highly credible people. Ford comes from a distinguished background as a college professor; Kavanaugh is a federal court judge in the second highest court in the United States.

Senate Prejudging of Kavanaugh Contributes to Bias

Before the hearing began on September 26, Sen. Kristen Gillibrand (D-NY) suggested that Kavanaugh does not deserve “the presumption of innocence until proven guilty” because Senate confirmation is not a criminal trial.

Senators are not judges; they have stated on numerous occasions that it’s their obligation to allow for a fair and impartial hearing. The Senate hearing on this allegation is the closest it will come to any judicial proceeding outside an actual impeachment trial.

Senators have openly stated that their minds can be changed. But if they are starting from a premise of prejudging the hearing with the belief Ford is telling the truth and Kavanaugh is lying, or vice versa, how is that being impartial?

Also by John Ubaldi: Mid-Term Election Campaigns Aren’t Addressing National Debt

The impartiality of the hearing is important for both Ford and Kavanaugh to present their case. Unfortunately, some senators have scrambled to be heard in support of Ford, reminding voters how they stand even before each side has presented its case.

Sen. Richard Blumenthal (D-Conn.), a former federal prosecutor, declared, “Let me say right at the outset: I believe Dr. Ford, I believe the survivor here.” Many senators have repeatedly warned they wouldn’t tolerate Kavanaugh labeling Ford as a liar over her allegation. But what they have failed to realize is that is exactly what Ford is calling Kavanaugh. She’s labeled him a liar.

During the hearing, Senator Sheldon Whitehouse (D-RI), also a former federal prosecutor, told Ford that he believed her. He said she is the kind of witness every prosecutor dreams of having. As a prosecutor, would Whitehouse have prejudged a criminal or civil investigation and claimed publicly that the accused was guilty, especially when the accuser could not remember:

  • Where and when the alleged assault happened in the late 1980s
  • How she arrived at or left the party, the alleged location of the assault
  • How many people were at the party or the gender of the party-goers

Furthermore, why did all the witnesses Ford named contradict her accounts? All of them stated via sworn written testimony that they could not recall such a party. It’s a serious felony if they are lying.

Even Rachel Mitchell, the sex-crimes prosecutor who questioned Ford on Thursday, wrote a letter to all Senate Republicans stating that the information at hand would be woefully inadequate to bring criminal charges against Kavanaugh.

It’s ironic that Justice Anthony Kennedy, whom Kavanaugh clerked for and hopes to replace, stated in 2016 that “Bias is easy to attribute to others and difficult to discern in oneself.”

The senators on the committee failed in their constitutional duties during the hearings. They promised the Supreme Court nominee that they would proceed with an open mind. In fact, they have now proven to America that their minds can be completely made up before any testimony is heard or any evidence is introduced.

Whatever happens, it seems that the fundamental principles of “innocent until proven guilty” and the “burden of proof” have been substantially damaged. The nation will forever rue the day when basic legal protections were engulfed by partisan politics.

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