While on a trip to Maine last week, I was bombarded by soft-money ads against Senator Susan Collins. Tens of millions of dollars are being spent by the Democratic Party to erode the approval rating of a moderate Republican during a year that she’s not facing re-election. The premise of these ads is that she’s a horrible person for supporting Supreme Court nominee Brett Kavanaugh, because he’s (according to them) planning to overturn Roe v. Wade. As I understand it, however, these ads are but the latest in a long series, an organized campaign to assassinate the character of one of the last surviving moderates in the Senate.
Over the course of the past few months, Collins has seen her approval rating slide from an astounding 78% to just over 50% in July and 35% in August, so we can presume the DNC’s effort has been effective. And yet, over this time period, Collins has been vocal and active in her opposition to portions of the Republican legislative agenda in general and to President Trump in particular. She has voted against several key measures and more than a few appointment confirmations. And, unlike most sitting Senators, Collins is present for almost every vote, no matter how trivial. She votes her conscience; she votes intelligently; she votes continually. Any sane person should always support someone like her in any election regardless of party affiliation.
The thing that really gets me about these attack ads? They’re not true, not even plausible. First, Kavanaugh won’t overturn Roe v. Wade; I’ve covered that elsewhere. Second, Collins has been very careful to avoid expressing an opinion about Kavanaugh’s nomination, even privately. Third, even if she had supported him, that wouldn’t make her a horrible human being or unworthy of re-election; recent allegations aside, Kavanaugh is one of the least offensive of Trump’s nominees, a capable jurist whose decisions are reliably based in established law. His biggest crime is that he’s a political conservative, just like half of America.
Well, his biggest crime aside from this sexual assault allegation.
The substance of the accusation is that several drunk people at a party were involved in a groping incident thirty years ago. Let me tell you a little bit about the law in Maryland (Bear in mind I’m not a lawyer.) According to FindLaw, what we’re told happened (if true) would qualify neither as rape nor as sexual offense in any of its four degrees. Wisely nor not, if sex doesn’t take place, groping is not prosecutable if both parties are too drunk to understand what’s going on. And thirty years is well beyond the statute of limitations applicable in this event.
In short, Mr. Kavanaugh is being accused of doing something that wasn’t illegal. There are no witnesses aside from the accuser. And in any case this couldn’t be prosecuted due to the statute of limitations — which exists for a reason, or to be more precise, three reasons:
- After too much time has passed, a defendant may well have lost access to evidence needed to prove their innocence.
- If an offense deserves prosecution, the plaintiff must pursue their case with diligence.
- Litigation of a long-dormant claim may well result in more cruelty than justice.
According to Demosthenes (36, For Phormio), statutes of limitations were created to protect the citizens of Athens from baseless or malicious charges, since the passage of time would eliminate witnesses and memory, tending to serve conviction rather than justice. These and other statutes were enacted to protect people from the depredations of sycophants — professional accusers who brought unjustified prosecution for personal gain, often political in nature.
To be clear: I do not accuse Christine Blasey Ford in particular of leveling this accusation against Brett Kavanaugh at this politically opportune moment of doing so from any particular motivation. She at least seems sincere; her testimony is compelling. I am suggesting, however, that such an action is conceivable, and implying that a person might so do. There are individuals presently spending vast sums to baselessly assassinate the character of a moderate senator in an effort to influence this specific confirmation; at such times as these, people regularly do insane things for political reasons.
And so what I am saying is this: We, the body politic, must always treat these sorts of accusations — the ones levied outside the judicial system — with a great deal of skepticism. We must work to prevent the accusation itself, unheard and untried, from influencing our perceptions, for accusations come easily. (Likewise, we must be careful to avoid condemning the accuser without a fair hearing, and for precisely the same reasons.)
The confirmation of Brett Kavanaugh is divided evenly along party lines. This alone should be cause for alarm, and for dissatisfaction with our political process for permitting such a situation to take place. That it might be endangered by any extralegal accusation which could not stand in a court of law indicates a truly unpleasant state of affairs.
Is the accusation against Kavanaugh plausible? That’s not my concern. If it is, there are professionals who will make that determination, and even though we may doubt the quality of their judgment, we have no choice but to trust them to do so. We have no recourse.
The reason I doubt them is that, in the entire body of the Senate, there are perhaps three of the quality of Senator Susan Collins: people who will vote their conscience, vote as wisely as they can and not for political reasons, who will weigh all the facts and make a determination diligently and intelligently.
The remainder of that body has already made up their minds before any hearing into the credibility of this accusation. The only reason they would change their minds would be if they could gain political capital by doing so.
Ladies and gentlemen, we need some new Senators — as independent as possible.