More Thoughts on Kavanaugh

As a person who enjoys going out to the theatre, I must admit, I have never seen the kind of theatre that we have witnessed over the last month or so regarding the Kavanaugh vs. Blassey-Ford case. There were a number of individuals whose moral courage deeply touched me as I watched and listened to the proceedings.

As I watched the drama unfold, I began wondering: What does Jewish tradition have to say about this particular quandary?

In terms of the biblical texts, we find:  “One witness alone shall not take the stand against a man in regard to any crime or any offense of which he may be guilty; a judicial fact shall be established only on the testimony of two or three witnesses. One witness shall not rise up against a man for iniquity or for any sin.” (Deut.19: 15).

Today we now refer to this idea as “due process” and historically, this important legal principle dates back to the Code of Hammurabi (ca. 1810-1750 B.C.E.). Claiming somebody did something wrong does not necessarily make the charge believable—at least not without concrete evidence or witnesses; collaborative evidence is essential for any allegation to carry weight. This principle applies in all cases involving capital punishment; it applies no less to financial disputes as well.

The concept of “mob justice” is hideous. Public opinion is not a court of justice. Judges must consider only the evidence—and not hearsay. This legal principle not only exists in the Constitution, the Magna Carta as well as the ancient Justinian Codes state the Latin maxim: ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

The Senate Judiciary Republicans hired Rachel Mitchell to question both Kavanaugh and Ford. At the end of her investigation Mitchell pointed out, “A ‘he said, she said’ case is incredibly difficult to prove,” But this case is even weaker than that.” Mitchell further argued that there were numerous inconsistencies in Ford’s recounting of the incident,  combined with Ford’s inability to remember “key details” from the night and the fact that none of the other attendees at the party in question corroborated Ford’s account.

In other words, the facts did not add up.

Although Mitchell offered no analysis of Kavanaugh’s testimony, she was more concerned with the strength of the charges, not the defense. And the reason for this is important—in our country, the accused does not have to prove whether he or she is innocent. The onus is upon the State to prove whether a person is guilty or innocent. The presumption of innocence is what differentiates our country from fascist regimes that insist that the accused has to prove his or her innocence.

Would anybody reading this article want this kind of justice for themselves, family, or friends?

As I watched men and women taking the streets in protest, demanding Kavanaugh be punished on the testimony of one person, I wondered: What has happened to our country?  Since when does anyone have to prove innocence?  Our legal principle is predicated upon the belief that the presumption of innocence is one of the most important foundations of a free society.

 

What would our Founding Fathers say about such a case?

Any child who takes a civics class knows the answer.

The presumption of innocence ought to be obvious to anyone who believes in the principles of American law. Yet, I felt dumbfounded by the legions of people willing to condemn without evidence. I wondered, how would any of us want to be in Kavanaugh’s shoes? I thought he would surely give up—especially with all the threats made to him and his family.

But the mob demanded blood.

Have you ever wondered what the McCarthy era was like? Look no further! Have you ever wondered what it was living in the Salem Witch Trials? Look no further. Think about the blood libels charges that Jews experienced during the medieval and modern era.

Senator Lindsey Graham surprised me and I must admit he almost sounded like an old-fashioned biblical prophet: “To my Republican colleagues, if you vote no, you’re legitimizing the most despicable thing I have seen in my time in politics,” he boomed during the questioning of Kavanaugh about allegations that he sexually assaulted Christine Blasey Ford more than 30 years ago. (He has denied the accusation.) . . .“This is the most unethical sham since I’ve been in politics and if you really wanted to know the truth, you sure as hell wouldn’t have done what you’ve done to this guy!” Graham said, his face contorted in anger.

Graham is correct.

From the Judaic perspective, one size does not fit all. Each case has to be based on the strength of the evidence and the merits of a charge. Without collaborative evidence, the presumption of guilt threatens to undermine the foundation of law that has governed our country since its inception.

Give Kavanaugh credit for remaining steadfast. Whether you agree with his philosophy of law or not, he stood his ground and refused to be intimidated.

At the conclusion of the Senate hearing, Senator Flake gave Kavanaugh some sage advice. Let the FBI do their work. Trump endorsed this course of action—and it was the only way to remove any lingering doubt concerning Kavanaugh’s ethics and character. Ultimately, the suggestion that the FBI look more deeply into this case proved to be the best course of action Kavanaugh could have wanted.

And what did the FBI discover? They met some interesting new people, including Ford’s former partner for six years,

The FBI investigated several other people; they explored other allegations that Kavanaugh acted inappropriately toward women by making unwanted sexual advances. One of the most damning pieces of evidence actually came from Ford’s ex-boyfriend who had a relationship with her from 1992-1998. In his letter, he contradicted Ford’s allegation that she had never helped anyone prepare for a polygraph examination. He pointed out how Ford helped a friend prepare for a polygraph test who had been preparing for a job interview with the FBI.[1]

He also claimed that Ford had no fear of flying (an observation that Mitchell also made). He also added that Christine had no problem living in a small apartment with one door and that she felt “unsafe” living anywhere without a second front door. He further said her voice sounded different from the one she used before the Senate.  Her boyfriend further pointed out that Ford lied about and then admitted to charging a credit card they used to share for about $600 of merchandise. Ford did not help her case by denying access to her therapist’s notes and other key materials. In fact, she greatly weakened her credibility. I suspect the credit card companies had physical evidence of his claim located in the microfiche.

The FBI could easily investigate this. They probably doubled-checked the case.

Did the Democrats orchestrate the entire ordeal to influence the November election?

What do you think? But consider the circumstantial evidence we have. Dianne Feinstein should have forwarded this information to the Senate committee to discuss the matter quietly. However, she chose a different path. Ford’s letter should never have been leaked to the press.

A good man’s reputation was smeared—and all for political capital.

New revelations continue to come out in the news. Ford’s best friend, Leland Ingham Keyser, a former classmate Keyser told the investigators that Monica McLean, a former FBI agent, and friend of Ford’s, urged her to substantiate Blassey-Ford’s accusation, but she refused. According to the WSJ, McLean’s lawyer denied his client tried to influence Keyser to change her account, calling it “absolutely false.” (Wall Street Journal (Oct. 5, 2018),[2]

But what if the WSJ charge against Ford’s best friend is true? Who is telling the truth? The FBI knows. Senator Grassley is correct in wanting the Senate to re-examine the claims of those accusing Kavanaugh. In fact, this is essential,

Consider the following passage:

“The two parties in the dispute shall appear before the LORD in the presence of the priests or judges in office at that time; and if after a thorough investigation the judges find that the witness is a false witness and has accused his kinsman falsely, you shall do to him as he planned to do to his kinsman. Thus shall you purge the evil from your midst.” (Deut. 19:17–19).

Put in modern terms, if the FBI proves there was wrongdoing on the part of Kavanaugh’s accusers, then those making the accusations need to face charges of perjury and malicious wrongdoing. There must be justice.

MORE AFTERTHOUGHTS

Today I was surprised and moved by Senator Susan Collins’ speech that lasted for forty minutes. She said it best today, and if you have not heard her impassioned speech, then listen to it. It is well worth your time. In fact, every school civics class should have their students listen to this wonderful talk.

  • “Mr. President, I understand both viewpoints. And this debate is complicated further by the fact that the Senate confirmation process is not a trial. But certain fundamental legal principles about due process, the presumption of innocence, and fairness do bear on my thinking, and I cannot abandon them. In evaluating any given claim of misconduct we will be ill-served in the long run if we abandon the presumption of innocence and fairness tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy. The presumption of innocence is relevant to the advice and consent function when an accusation departs from a nominee’s otherwise exemplary record. I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward.”

If President Trump has another judge to appoint in the future, I believe it should be Judge Merrick Garland.  As a good friend of Judge Kavanaugh, they shared 85 cases together and he dissented from Judge Kavanaugh only once. Number two, it would heal the rift between Republicans and Democrats–albeit partially. I doubt there would be a smear job done on  Merrick Garland. Lastly, he is a humble man, and humility befits a judge of his caliber. What happened to him during the Obama Administration was unjust. He would also add a little more of a centrist character to the Supreme Court.

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Rabbi Samuel is spiritual leader of Temple Beth Shalom in Chula Vista.  He may be contacted via michael.samuel@sdjewishworld.com

[1] https://www.foxnews.com/politics/christine-blasey-ford-ex-boyfriend-says-she-helped-friend-prep-for-potential-polygraph-grassley-sounds-alarm

[2] [1] https://www.wsj.com/articles/friend-of-dr-ford-felt-pressure-to-revisit-statement-1538715152

 

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