Investigations redux: advise and consent?

A single witness shall not suffice against a person for any crime or for any wrong in connection with any offense that he has committed. Only on the evidence of two witnesses or of three witnesses shall a charge be established.” Deuteronomy 19. “Every charge must be established by the evidence of two or three witnesses.” 2 Corinthians 13. “Do not admit a charge against an elder except on the evidence of two or three witnesses. As for those who persist in sin, rebuke them in the presence of all, so that the rest may stand in fear.” 1 Timothy 5. “Anyone who has set aside the law of Moses dies without mercy on the evidence of two or three witnesses.” Hebrews 10. It seems the Bible has a “thing” about 2 or 3 witnesses, eye-witnesses that is. These quotes include offenses like undefined sin, slander, offenses that are crimes and violating the “law of Moses”, akin in our secular world to violating the Constitution, plus penalties from rebuke to death. Accusers had to meet this rigorous standard. How about the accused? We can clearly see that the presumption of innocence is a very long-lasting standard. Even bringing a charge required two or three witnesses, in order to be established.
Presumption of innocence–putting the legal burden of proof on the prosecution, or in this case the accuser–is not the only legal principle we Americans embrace automatically, and it isn’t uniquely American either. It was part of Roman law under the Justinian Codes, English Common law, even Islamic law. Other cherished legal principles are the right of the accused to face their accuser, due process under the law, impartiality of judges and juries, the validity of accusations based on the evidence rather than emotions or believability of (i. e. sympathy for) the accuser. As a father of three daughters, I absolutely HATE HATE HATE sexual assault, sexual innuendo, abuse of authority for sexual power or gratification, HATE HATE HATE that daughters are reluctant to confide in their fathers about sexual abuses they have suffered (and if the father was the abuser, death is too good for him). The Biblical role of a father was to protect; stoning was the preferred method of dealing with that failure. I also hate any kind of satirizing or even minimizing the trauma that these women experienced. 
BUT, how I feel as a father is irrelevant to the larger issue. If we continue to let feelings carry the day, say goodbye to due process and to your own liberty! Once again, I give you Daniel Henniger, writing for the Wall St. Journal: “Judge Brett Kavanaugh’s nomination to replace Anthony Kennedy on the U.S. Supreme Court is a watershed event that will define America’s politics for years. If the Kavanaugh nomination fails because of the accusations made against him by Christine Blasey Ford and others, America’s system of politics, indeed its everyday social relations, will be conducted in the future on the Kavanaugh Standard. It will deepen the country’s divisions for a generation. The Kavanaugh Standard will hold that any decision requiring a deliberative consideration of contested positions can and should be decided on just one thing: belief. Belief is sufficient. Nothing else matters.
Rape is already a prosecutable crime. Definitions of sexual harassment are undergoing a reconsideration that may yet produce new legal standards to determine liability or suitability for employment. Right now, we are not close to a consensus. Once the decades-old accusations had been made against Judge Kavanaugh, with no corroboration available or likely, the Senate Judiciary Committee had no practical or formal basis for enlarging the discussion about his nomination. For everyone, the way forward was into a fog.
Then something new happened. Half of the Senate Judiciary Committee created this standard: “I believe Christine.”
It is an inescapable irony that the Kavanaugh Standard—“I believe”—is being established inside the context of a nomination to the highest U.S. court. This new standard for court nominees (and surely others in and outside politics) would be that judgment can be rendered in the absence of substantive argument or any legal standard relating to corroboration, cross-examination or presumption of innocence. The new, operative standard, assuming two Republican senators abandon Judge Kavanaugh, will come down to a leap of faith.
I have been wondering what the rest of the nation’s sitting judges are making of the Kavanaugh proceedings. Looking at what has happened recently to university professors accused and then abandoned by their schools and colleagues for alleged racial offenses, or at the spectrum of proof in #MeToo incidents, it is clear that the political and academic left are contesting centuries-old standards of evidence. Liberal jurisprudence and its arguments with conservatives, for example over Fourth Amendment search cases, is being displaced by a Democratic left—there is no other way to describe it—that prefers rough justice.
Professors at Yale Law School canceled classes this week so that much of the student body could travel to Washington to support Ms. Ford’s allegations, which suggests that the most popular class at Yale these days must be “Legal Principles from the Stone Age to the 10th Century.” It’s not a joke.
In a more conciliatory atmosphere, one might say that even if the claims of a high-school offense were true, surely there is a case in adulthood for forgiveness. But these are unforgiving times, and that virtue is out the window. The question is whether the Senate’s advice and consent for appointment to the U.S. Supreme Court should be reduced to simple secular belief. More important is that the entire country is watching now, and we’ll find out soon what the American system of law is going to look like for the next 25 years.”
So, dear readers, you might be saying “I believe whomever” in these confirmation hearings, and you think that matters. What matters more are the principles by which we are governed and protected from over-governing. I enumerated some of those principles above. While the “advise and consent” function of the Senate is hardly a criminal trial, the standards established will slop over into our entire legal system. If you really think it matters in the long run whom you believe, rather than assuming the innocence of the accused and putting the burden of proof on the accuser, pray to God that you are never the accused, neither justly nor unjustly! Oh, by the way, the penalty in ancient Israel for false accusation was for the punishment intended had the accused been guilty, to fall on the accuser. Maybe we should bring that one back.

Author: iamcurmudgeon

When I began this blog, I was a 70 year old man, with a young mind and a body trying to recover from a stroke, and my purpose for this whole blog thing is to provoke thinking, to ridicule reflex reaction, and provide a legacy to my children.

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