Hirano’s Hedge: Kavanaugh Not Entitled To Presumption Of Innocence Due To His Ideological Views

440px-Mazie_Hirono,_official_portrait,_113th_CongressWith the addition of a second woman alleging sexual misconduct of Brett Kavanaugh, it is still not clear what factual disputes will have to be addressed before a final confirmation vote occurs in the Senate. Putting aside questions over late timing of the allegations, there is agreement that the Senate will have to consider both the allegations of Dr. Christine Blasey Ford and the new allegations of Deborah Ramirez. What is far more troubling is the continued disagreement on the standard that Senators should use in considering the allegations. While objecting that their Republican colleagues are not prepared to give the women an “impartial hearing,” various Democratic senators have declared (before any testimony is heard) that they believe Dr. Ford – and thus do not believe Judge Kavanaugh. That is troubling enough, but Sen. Mazie Hirono (D., HI) has introduced a far more troubling element in suggesting that she may decide the factual question on the basis of Kavanaugh’s jurisprudential views.

Hirono has previously declared that she believes Ford even before hearing either in testimony before the Committee. She also told all men everywhere to “shut up” and just stand with Ford. In her latest interview, Hirono was pressed on whether Kavanaugh has “the same presumption of innocence as anyone else in America?” For most people, the question would be an easy one to answer in the affirmative, Hirono demurred and declined to say that she would afford Kavanaugh this core presumption of the rule of law. She said that she would “put his denial in the context of everything that I know about him in terms of how he approaches his cases.” She said that she would consider his “ideological agenda” and her view that “he very much is against women’s reproductive choice.”

Hirono’s mixing of factual with ideological considerations further degrades a process that is already deeply undermined by last minute allegations and partisan bickering. It is also curious to see a senator tie credibility on sexual misconduct to one’s view of Roe v. Wade. Bill Clinton, Harvey Weinstein, Matt Lauer, Al Franken and others were all reportedly pro-choice but also labeled as abusers.

Such a reference to an accused’s political or ideological views by a judge would be viewed as the basis for a mandatory recusal for bias. It is entirely immaterial how one views constitutional rights in whether they should be believed in denying the admmission of a crime.

There was, of course, a time when such a presumption of guilt on the basis for religion or nationality or other characteristics was an accepted (even celebrated) practice. During the Spanish Inquisition, who you were would determine whether you would be believed. It was not just suspected Jews but others like foreigners who faced an effective presumption of guilt. When Pedro Ginesta, an elderly man from France was arrested in 1635 for eating bacon on a day of abstinence, the indictment declared “The said prisoner being of a nation infected with heresy [France], it is presumed” that he is lying and part of “the sect of Luther.”

France for its part had the same difficulty with separating politics from law. During the French Revolution, the Law of Suspects was passed in 1793 relieving tribunals of the burden of minimal evidence in ordering arrests and any perceived counter-revolutionary views was enough to be indicted. Jacobins saw law and politics as inextricably linked. Of course, the desire to use legal or legislative means to punish political opponents becomes an insatiable appetite. One year later, the tribunals passed the Law of 22 Prairial, which stripped away remaining protections for the accused and allowed juries to convict on the ambiguous basis of “moral certainty.”

Hirono’s description of her approach comes dangerously close to the Jacobin use of “moral certainty” in judging facts. If Kavanaugh’s opposition to Roe can be used to subject him to a higher burden, would Weinstein’s support of Roe afford him a lower burden of proof?

It is not enough for Democratic Senators to simply say that they are not judges and therefore entitled to any standard of review no matter how pre-determined or unfair. Members of Congress do not have license to mete out punishments and judgments without due process to citizens. The Framers expressly barred Congress from passing “bills of attainder” – legislation that effectively singles out individuals or groups for special punishment for perceived offenses. Likewise, committees are subject to individual constitutional rights including the right against self-incrimination and other constitutional protections. In other words, there are rules.

More importantly, there are principles. When a member swears to uphold the Constitution, they agree to respect our defining values and protections. One of the most central protections is to be allowed a fair hearing. This is particularly the case when someone is accused of a heinous criminal act.

Unfortunately, “moral certainty” appears to be the growing standard for members who are rushing to assure voters on both sides that they are respective locks for either Ford or Kavanaugh. Proof then becomes a simple political head count. Sen. Sheldon Whitehouse (D-R.I.) has even declared that he expects that, if Kavanaugh is confirmed, a Democratic majority would launch an immediate investigation and possible impeachment against him as an associate justice.

Thus, as Ella Wheeler Wilcox said, “no question is ever settled until it is settled right.” Yet, what is “right” increasingly appears like a simple question of math rather than principle in the United States Senate.

It is doubtful that Kavanaugh could be impeached absent clear proof of perjury before Congress. Thus, what happens next year may be less important than what happens this week. Senators on both sides must decide if they will act to further their constitutional institution or just their political instincts.

348 thoughts on “Hirano’s Hedge: Kavanaugh Not Entitled To Presumption Of Innocence Due To His Ideological Views”

  1. I, having been born and raised in Hawaii and of Hawaiian heritage, am so embarrassed by this “lolo” (Hawaiian word for “imbecile”) representative of the Hawaiian people-EMBARRASSED and ASHAMED. By believing that Kavanaugh was not entitled to presumption of innocence and that Ford is to be believed, I guess this “lolo” senator would have supported Thalia Massie, a 20-year old socialite who in 1932 accused several local (Hawaiian) boys of having raped her–and she made the whole damn thing up. The trial was covered throughout our country (search “The Massie Case”). But I seriously doubt she had this trial and accusations in mind when she openly and recklessly accused Judge Kavanaugh of being guilty without any proof, without any evidence. Remember also that this “lolo” senator also claimed she was “unclear whether those entering the country illegally was considered breaking the law.” WHAT??!! The state of Hawaii can do better…and it better do better because Hirono has seriously damaged the state’s reputation in the political arena (not that its reputation is sterling as is!)

    1. Not a criminal trial so there is no “presumption of innocence”. Any more than at any other job interview.

      1. David Benson is the King of Making Stuff Up and owes me twelve citations (one from the OED) and the source of a quotation, after nineteen weeks, and needs to cite all his work from now on. – you ever been to a job interview where they accused you of a criminal offense, yet called you back for a follow up interview?

    2. mahalo a nui loa

      i sure hope Hawaiian men can do better, clearly she wants you to sit down and shut up, she said so

    3. Anonymous – we all have our crosses to bear. We had McCain AND Flake. You have Hirono. When is she up for re-election? I hope the Republicans are collecting soundbites.

  2. I am seriously concerned whether we can still have a functioning republic when we have Senators making statements that are clearly unconstitutional, like those made by Sen. Hirono and others.

    Clearly, these Senators have prejudged the case against Brett Kavanaugh. An entire group has stated that they will vote “No” on the issue of his confirmation to the Supreme Court before any evidence has been presented.

    I have to side with comments made by Sen. Lindsey Graham (a Senator I have often disagreed with in the past) when he said that, “Elections have consequences. And one of the consequences is that the winner gets to pick those who will fill vacancies.” He cited this as the main reason he voted for both Sonia Sotomayor and Elena Kagan when they were nominated to the Supreme Court by President Obama. He also cited that they didn’t agree with him philosophically, but that they were nominated by the President and were quality judges.

    1. I note David that you do not do a lot of thinking. I guess you are too used to others thinking for you. Even your questioning is poorly thought out.

      I’ll make it easy for you. I don’t believe “pure capitalism” existed nationally at any time in our history. Capitalism yes, pure capitalism no. Start your quest by thinking of tariffs.

      1. Talk about confused. The US tariffs meant that the Robber Barons didn’t have to compete with those from England. Easier for them to become monopolists. Which they did.

        As predicted by Karl Marx.

        1. I showed you that pure capitalism didn’t exist so that you had a chance to recognize that your statement wasn’t correct. I can’t believe you forgot what the discussion was about and rather than thinking you changed the discussion.

          The US never had pure capitalism as you suggested. Go find one of you colleagues that taught history or economics. Let them educate you.

          1. Looks mighty pure to me.

            Pure American unbridled capitalism. As in Carnegie, Mellon, Rockefeller, Stanford, etc.

            1. There is no doubt the markets were freer during those days but your belief that pure capitalism existed in the US is rubbish and I provided just one of many examples why you are wrong. Now you are changing what you said instead of admitting that what you wrote was wrong. I guess intellectual honesty didn’t exist at your university when you were there.

        2. David Benson is the King of Making Stuff Up and owes me twelve citations (one from the OED) and the source of a quotation, after nineteen weeks, and needs to cite all his work from now on. – the first US tariff is in 1789. Marx starts “predicting” in 1848. Stick to electrical engineering. BTW, there were no Robber Barons in 1789, the tariffs were to protect manufacturing.

          1. “the first US tariff is in 1789. …. BTW, there were no Robber Barons in 1789,”

            David had to hide his lack of knowledge. I decided to say enough is enough, but your statement cut his legs off so he can’t run away.Don’t trip on him on your way out.

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