Not since Clarence Thomas and Anita Hill in 1991 has a Supreme Court nomination so rocked the political landscape and grabbed the attention of a nation as the recent debacle that became Associate Justice Brett Kavanaugh’s nomination battle. Very quickly the electorate took sides, believing one position over another mostly on party lines. But, what was missed in this ideological battle over control of the high court is why a Justice Kavanaugh is a vast positive for those who are incarcerated and those who stand strong for reform of our criminal justice system. Why, you ask? Because should Kavanaugh have been defeated then what little bit of due process we still have would have died with the nomination; and, secondly, because Kavanaugh is a strict constructionist judge who doesn’t legislate from the bench.
Most persons who have sat at a defense table facing the long arm of government prosecution understand that the constitutional presumption of innocence in our justice system is almost a joke. The reality is once a warrant is issued, or an indictment certified, it is up to you to prove your innocence. This forces the defendant into the often impossible position of disproving a negative. Now this is not to suggest the prosecution always gets it wrong and all incarcerated persons are innocent, but they do get it wrong often enough that all persons should be concerned for not only the health of the justice system but also for themselves. It doesn’t take much for one to be assigned a pair of convict blues.
This presumption of guilt has permiated itself into the fabric of society, driven by the #MeToo movement run-a-muck and politically correct group think. Victims of sexual assault, victims of any crime really, deserve to be heard and believed, but only believed to the degree that their allegation makes sense and is supported by unbiased, untainted facts and evidence. Believing for believing’s sake leads to the ruin of innocent peoples lives.
If you we’re asked to believe that Bill robbed my house but I can’t tell you when, how, where, why and what he took, would you believe me? What if I gave you several names of people who could vouch for my house being burgaled and when you contact them they say they have no clue what I’m talking about and they go even further to say they know for a fact I don’t even own a home. Would you believe me then? What if I add the fact that I’m not sure of the exact time table but it was at least three and a half decades ago, but I just now decided to report it? Let’s be real. You would call me on the bull my story is.
But yet that is exactly the type of baseless story we were asked to believe against Kavanaugh. Christine Blasey Ford claimed to have been violently sexually assaulted by Brett Kavanaugh some 36 years ago, but she was unable to explain how she got to the party, where the alleged assault occured, how she got home, who was there, what year it happened, how old she was at the time, who pushed her into the room where she was supposedly attacked, along with many more relevant details. To add credibility to her account Ford offered the testimony of witnesses she says were at the party, one being a close personal friend from her childhood to present day. However, shockingly, there was a snag, these witnesses told the truth: that not only did they not have any knowledge of the alleged incident, some said they had never even met or been in the same place as Brett Kavanaugh. So with these facts in mind, if one takes away the natural compassionate human inclination to want to protect a vulnerable teenage girl who turned into a sophisticated woman and seek vengeance on her behalf, what you are left with is simply insufficient proof that anything happened. But how quickly we sought to hang Kavanaugh, to ruin his families life on speculation alone. How in a fit of blind collectivism we conducted another “high-tech lynching” as described by Justice Thomas. This is precisely what the government does to countless defendants in their never ending pursuit of a higher conviction rating.
This simply isn’t the model of justice our founders intended. Benjamin Franklin is often credited as having said he would “rather 100 guilty persons go free then one innocent man be imprisoned for a crime he did not commit.” Our founders drafted a constitution designed to protect the public while giving actual due process to those accused. U.S. Court of Appeals Judge Kleinfield put it best when he stated that we as a nation have forgotten the fundamental bedrock enshrined by the drafters of our constitution that “if we use prison to achieve social goals regardless of the moral innocence of those we incarcerate, then imprisonment loses its moral opprobrium and our criminal law becomes morally arbitrary.”
When Brett Kavanaugh fought for himself he was fighting for all of us who have had their rights to due process stomped on in the name of the old prosecutors adage “well he’s gotta be guilty of something”. The fact that he was believed and confirmed proves that we just might not be to far gone as a nation and that due process might actually still exist.
The second reason Kavanaugh is important to the incarcerated and proponents of reform is because Kavanaugh is an impartial, unbiased strict constitutionalist. It is often said that the law “is whatever a judge sitting in a courtroom any given day says it is.” While sadly this rings true, this was exactly the fear of our founders. America was built upon a system of checks and balances, three seperate but co-equal branches of government. This boils down to the key fact that judges are never supposed to make law, that’s what we have legislators for. Judges are only to interpret and apply the law as written.
Much of criminal justice reform would be achieved by simply applying our founding principles of blind and equal justice for all as it was actually intended. Judges today to often cow tow to political pressure, are quick to play it safe and rule in favor of the prosecution, forget that guilt must be proven beyond any reasonable doubt, and sentence those found guilty disproportionately to the reality of their crime. Kavanaugh is not one of those judges. His judicial record is clear. He is willing to make tough calls, to rule against the government when they have violated the rights of the accused, and follow the law as written even if he may not agree with the outcome. This is exactly what we need wearing the black robe and holding the wooden gavel.
So don’t believe the hype. Don’t drink the Kool-Aid. Follow the facts. Read Kavanaugh’s rulings for yourself and what you will see is regardless of red or blue agendas a Kavanaugh style justice is a win for juris prudence.
Categories: Kyle Adams