Brett Kavanaugh is not entitled to be presumed innocent

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“We The people text” by Anthony Garand on Unsplash

Brett Kavanaugh is entitled to the benefit of the doubt, to be presumed innocent of the charges until he is proven guilty, say his defenders.

NOT. The so-called presumption of innocence has to do with the burden of proof the state must meet to convict someone of a crime. It is a heavy burden. If the state cannot prove someone guilty beyond a reasonable doubt, the person is legally not guilty. Everyone may be pretty sure he or she did it. The Defendant may not have even argued a case. It doesn’t matter. As a matter of law, if the jury is not convinced beyond a reasonable doubt, they must acquit.

The reason the state has this heavy burden is clear: it has nearly unlimited resources — all provided at taxpayer expense — while the defendant has very limited resources, sometimes not even enough to afford a lawyer. And the coercive power of the state is something that our Founding Fathers feared. After all, it is the one entity legally empowered to take away our sacred rights — life, liberty, and property — as they were originally enumerated in the Declaration of Independence.

Brett Kavanaugh faces the loss of none of these rights if the Senators even suspect that he sexually assaulted Christine Blasey Ford. Instead, he stands to receive one of the greatest honors any American can get: elevation to the nation’s highest court. He certainly does not have a right to be confirmed to that position.

This is where both Kavanaugh’s defenders and many of his critics have it wrong. Kavanaugh does not have a right to be confirmed. If the Senate does not vote in his favor, he will not actually lose anything he already has. He will return to the life of privilege his background has granted him. As a result, if Dr. Blasey does not convince people of her accusation up to a certain standard, this concern should not be ignored.

Moreover, elevation to the Supreme Court is not just about Kavanaugh. It is about the continued legitimacy of the nation’s legal system. Placing someone upon the Court where there is even a credible question as to his appropriateness will undermine that legitimacy. As a result, in considering these allegations, the Senate must not only consider what is “fair” to Kavanaugh, it must consider whether its action will protect the respect Americans have for the rule of law.

Poor Brett Kavanaugh. His allegedly bad behavior when he was a teenager might keep him off the Supreme Court. But his career path should be the least of the concerns of the Senate. Instead, they need to put the country’s needs ahead of his. Doing so would really be a breath of fresh air these days.

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Mike is an Assistant Professor of Management for Legal and Ethical Studies at Oakland U. Mike combines his scholarship with practical experience in politics.

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