Most of us know the old Chinese curse, “May you live in interesting times.” Well, we do—as if we didn’t have enough trouble with China. Yesterday, I had the “interesting” nature of the times thrust upon me in the form of a couple of remarks from a friend—a conservative friend, mind you, and maybe more conservative than I. The conversation turned inevitably to Brett Kavanaugh and Christine Blasey Ford. What did my friend think? Well, he said, he believed she was “credible,” a judgment echoed by his wife and, as it happens, by my wife.
“Credible” may be defined in more ways than one; the legal concept of the word interests me. And here, it’s only fair to say, I relied heavily on some comments by Andrew McCarthy at National Review Online. Legally speaking, how “credible” is an accuser who cannot remember when the event central to her claim took place, cannot say where it took place, cannot explain how she departed the scene, and cannot provide a single person to corroborate her story? As McCarthy, a former assistant Federal prosecutor, pointed out, such claims are not “credible”; they are “incredible.” And I take it that he did not intend the last word as a sarcastic quip but as a precise definition of the absence of necessary information for a case to even exist.
Yet Christine Blasey Ford has publicly accused Brett Kavanaugh of sexual assault thirty-seven years ago based on, once one weighs the totality of the claim, mere assertion. Such things do happen, and, I hope more often than not, they don’t get prosecuted. But the politically charged atmosphere of a Supreme Court nomination precludes all consideration of common legal practice to the extent that even some conservatives find Ford’s unsubstantiated claims “credible.”
My suggestion to my friends (and my wife) was that she was not credible so much as she was deemed sincere. To many people that may have been enough cause to suspend disbelief, habeas corpus, and the presumption of innocence all in one fell swoop, but not for me. Like “credibility,” “sincerity” may be interpreted in various ways. Was Ford sincerely of the opinion that Judge Kavanaugh attempted to rape her? Was she sincerely convinced (as, let’s not forget, a dedicated Bernie Sanders supporter might well be) that keeping Kavanaugh off the Supreme Court justified the use of any means? Those questions are unanswered and likely will remain so. But however sincere she was and for whatever reasons, Ford could not lend credibility to anything she alleged without some basic facts, which were plainly lacking.
The conversation wound down for the very good reason that we had other serious tasks to perform, but not before my friend commented something along the lines of “Well, we’ll never know what happened.” And so it ended.
But I do offer a very necessary rejoinder to what my friend said in closing. Of course, we’ll “never know” what happened in the only sense that matters here, the existential sense. We’re not clairvoyants; we cannot see inside the souls of others. In court, apart from an outright admission of guilt, neither juror nor judge ever completely know “what happened.” They were not present at the time and place of the crime or misdemeanor; neither can they read the minds of the accuser and the accused.
However, judge and jury do know two things, which I’ll take one at a time. The first, a rock solid foundation of our legal system, is that the accused is innocent until proven guilty. Every man or woman that walks into court is presumed innocent and will remain so, saving evidence produced to the contrary that establishes guilt beyond a reasonable doubt or, in non-criminal cases, a preponderance of the evidence. But whether one stands accused of misdemeanor or crime, the presumption of innocence is sacrosanct and cannot be treated as something politically inconvenient (as it was by Senator Mazie Hirono of Hawaii). Unless a grand jury indicts the accused on the basis of at least some credible evidence, proper procedure, and sufficient witnesses to testify one way or the other—tests Christine Blasey Ford’s accusation never would have met—there is no case.
What kind of world would we live in politically where this honored practice did not exist, where mere finger pointing was enough to convict? Such places have existed: Nazi Germany, Soviet Russia, Maoist China, all had their enemies list: communist, capitalist, counter-revolutionary, fascist and imperialist, all labels ready to slap on innocent people, too often for no other purpose than to create an environment of fear and to silence opposition.
Today, to charge someone with sexually predatory behavior (or racism, sexism, homophobia, Islamophobia) is enough to ruin a career and, when needed, derail a nomination. Is it sometimes justified? Of course. But to justify an accusation demands not sincerity but credible evidence. Guilty until proven innocent is the doctrine of a totalitarian state. It has no place in the United States or, it’s hardly necessary to add, a U. S. Senate hearing.