When Smears, Innuendo, and Speculation Become the Rule of Law

Fresh out of law school, I went to work for the Montana Attorney General. I was assigned to the civil division which dealt with the state’s regulatory and administrative agencies and represented the state in civil litigation and civil appellate matters before the Supreme Court of Montana. I was low man on the totem pole. One of the senior lawyers who was a hold over from the previous administration and turned out to be one of the laziest lawyers I ever met, dropped a load of files on my desk and told me that I was to handle the cases.

The file on the top of the stack turned out to be an appeal from a lower court ruling dismissing the case as failing to state an actionable claim. The plaintiff was represented by one of Montana’s best known trial lawyers – it was probably the reason that the senior lawyer dumped it on me because he did not want to go up against such a seasoned and successful trial lawyer. After researching the law on the case and the decision of the lower court, I was ready. The plaintiff’s lawyer was arguing that despite the lack of any constitutional, statutory, or administrative rule, his client was entitled to be compensated based on the standard of “fundamental fairness.” I argued that, first, there was no where in the Montana Constitution or the laws of the State of Montana that established or even recognized the standard of “fundamental fairness; and, second, that the very essence of such a standard was deeply subjective and, therefore, susceptible to the whim and caprice of anyone who proposed it. I concluded by noting that we are a nation (and a state) of laws – objective laws – that apply equally to all and that “fundamental fairness” was a standard that existed only in the vagaries of the beholder. The Montana Supreme Court affirmed the lower court ruling and dismissed the appeal.

While that case occurred nearly fifty years ago, it wasn’t the first time, nor the last time that lawyers would ask the courts to ignore the law and create a new standard acceptable to their client (and their pocket book). The most famous of these decision was Roe v. Wade where the United States Supreme Court invented a concept described as “the penumbra of rights” into which they could plug anything, including the right to have an abortion – despite the fact that the elected representative in every state of the union had prohibited just such a right. It was an instance in which liberal/progressives had failed to achieve change through the legislative process and decided to ask the courts to give it to them anyway. Anytime you hear a judge refer to something like the penumbra of rights you know that they are just making it up – the same applies when judges state that they can divine the meaning of the framers of the constitution despite a lack of any written or historical record in support.

Now we see that liberal/progressives are willing to ignore the law in order to achieve a political aim. The liberal/progressives in the Democrat minority of the United States Senate seek to convict by accusation, rumor, gossip, innuendo and anything but facts Judge Brett Cavanaugh in order to deny him confirmation to the United States Supreme Court.

Judge Kavanaugh has been accused by a woman of sexual assault some thirty-five years ago when she was fifteen and he was seventeen. She never reported it to anyone and claims that it was a “repressed memory” that appeared during “couple’s therapy” six years ago. She claims that she still suffers trauma from that assault resulting in, among other things, claustrophobia and cannot, therefore, fly. Mr. Kavanaugh has denied that the assault ever occurred.

One of the fundamentals of law in this country is that the accuser bears the burden of proving his/her accusations. To do otherwise would force the accused to prove his/her innocence. In this instance the accuser cannot account for where or when the assault took place, thus denying the accused the opportunity to demonstrate that he was elsewhere. She has named three people to corroborate her story all of whom denied that it took place or that they were present when it allegedly took place. She cannot identify how she got to the alleged party or back to her home thus denying the accused of the ability to determine if she was ever at the alleged time and place. In other words, there is not a shred of evidence supporting her accusations and thus leaving the allegations in limbo as “he said/she said.”

The Senate Republicans hired a veteran sex crimes prosecutor to examine both Mr. Kavanaugh and his accuser. Despite the stars of this media circus being the accuser and Mr. Kavanaugh, the real star of the show for those of us who still care about the rule of law was Rachel Mitchell of the Maricopa County Attorney’s office. At first she seemed clumsy with her low key tone and her seemingly unimportant questions but as one listened you saw that piece by piece she was trying to find anything that would support the accuser’s allegations. The big one for me related to the accuser’s stated claustrophobia and her inability to fly. Ms. Mitchell presented evidence through the accuser that she routinely flies both nationally and internationally for both business and pleasure. If you will lie about the small things, you will lie about the big ones too.

So was the accuser sexually assaulted? She believes that she was and her presentation was compelling; however, lacking specifics and corroborating evidence she has not met the burden of proving her accusations. That is the essence of the rule of law in America.

But has that deterred the Senate Democrats? Not in the slightest. Their standard apparently is that if the accuser is a Democrat that the accusations must, therefore, be true without any corroboration.

The rule of law is in extraordinary danger in America – just as it was in the dark days of the Red Scare and McCarthyism. The new acolytes of McCarthyism are the new stars of the liberal/progressive movement in the Democrat Party – Sen. Corey Booker (D-NJ, Sen. Mazie Horono (D-HI) (who demands that white men shut up and accept the accuser’s accusations), Sen. Michael Blumenthal (D-CT) (who lied about his service in Viet Nam but demands integrity from others) and Sen. Kristen Gillibrand (D-NY) (who fawned over former President Bill Clinton amid revelations of his sexual assaults but demands that Mr. Kavanaugh’s accuser be believed). But the worst is saved for Sens. Kamala Harris (D-CA) and Dianne Feinstein (D-CA) who are the most likely sources of the leaks despite the accusers repeated requests for anonymity – actions that placed politics above the privacy of the accuser and launched the media circus that has left Mr. Kavanaugh tainted forever because he cannot prove a negative.

In the final analysis Mr. Kavanaugh will likely be confirmed but will forever be tainted by unsubstantiated accusations that the Democrats will broadcast and distort forever. And the accuser – well, I could say that she can revel in her fifteen minutes of fame but I don’t think that is what she wanted. In reality her life too has been ruined and she will be subject to additional scrutiny, false stories, derision from comedians, and the eternal whispers as she returns to the world of academia.

All of this for politics – not for the rule of law.

I have purposely not used the accuser’s name out of respect for her privacy – privacy that has been denied her by the very politicians that she trusted to protect her. To the new McCarthyites, have you no shame?