Kavanaugh and the Fifth

Written by: Colin Offenbacker

Amendment V of the United States Constitution says:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Christine Ford, a professor at Palo Alto University, has leveled accusations of sexual assault against Supreme Court nominee Brett Kavanaugh. The accusations relate to a supposed incident dating back over 30 years ago, while the two were high school students in suburban Maryland. Since this is a simple blog post I will not go into all the details of this situation here, we will however be speaking about it at great length on this upcoming show, so keep an eye out for episode 32 when it drops early next week. Today I’ll be focusing on an amendment to the US Constitution, an amendment which I feel has been getting overshadowed by the righteously emotional context of the #metoo movement. We’re talking about the 5th amendment, particularly the aspect which addresses what is commonly referred to as “due process”.

As this last week has unfolded I’ve seen articles from Time Magazine, The Washington Post, Salon, The Guardian, the list goes on and on, attacking Judge Kavanaugh’s character. This is a side-effect or perhaps a byproduct of the raging culture war our country finds itself engulfed in. Given an opening by a single unsubstantiated accusation, opponents of Kavanaugh’s nomination and possible confirmation to the Supreme Court have attacked him with unrelenting force and yet again were witnessing a trial in the unruly court of public opinion. Guilty until proven innocent.

Whether or not Kavanaugh should or should not have his nomination confirmed by the Senate Judicial Committee has become yet another battlefield in the aforementioned culture war. I would also argue that the entirety of this hearing in particular was so mired in the bog of political partisanship, the true responsibilities of the committee couldn’t and wouldn’t have be met with or without these accusations. Regardless of this we still see the articles and hear the political pundits call for Senators to vote his nomination down or at the very least delay their vote until an FBI investigation can be conducted.

This call for an FBI investigation is what troubles me. Yes it is true that the President can call on the FBI to run an investigation into these allegations but it’s not generally the FBI’s job to do such things unless specifically directed by the President, and in this particular case there doesn’t seem to be any real evidence for them to even begin an investigation. There has been no evidence brought forward, no addresses, no real time-line and no way to prove Kavanaugh’s guilt, just the name of a supposed accomplice and a story from one of the parties involved. Just because Judge Kavanaugh is in the special circumstance that he is, he does not forfeit his right to due process under the law. It is hard to come to terms with especially when in the #metoo era, but every single citizen of the United States of America has the unalienable right to due process under the 5th Amendment of the US Constitution regardless of how guilty or innocent “we know” they are. If the situation in the Washington Post article where Ford details her recollection of events is entirely true, I am in no way saying that it is not, Kavanaugh still has the right to due process under the law and should not have his rights infringed upon. Unfortunately, I believe it would take a Supreme Court ruling on whether or not Kavanaugh’s status as a nominee is protected under the 5th Amendment or perhaps some other legal statute.

For now, I’ll reserve my own judgment on his guilt until if and when any evidence surfaces that could proves such, otherwise he is innocent until proven guilty. The hearing made available to Ford by the committee chairmen Senator Grassley should be carried out and then a vote on Kavanaughs confirmation should be taken. It’s unfair and frankly unAmerican to presume such guilt, this ideal is literally written into the foundational document of our Democratic Republic and should not be treated lightly, fore it could be you who is next called upon to prove your innocence in the court of public opinion, it could be your career, your livelihood which is threatened by an unsubstantiated accusation.

I am by no means a big fan of Judge Kavanaugh, frankly if I was a Senator on the committee I would vote against his nomination strictly based off of some of his answers given during the hearings. I simply refuse to rush to judgement when faced with an unsubstantiated claim of sexual assault and believe thrashing a persons life based solely off such accusations is simply unjust.  I do hope that if he is indeed guilty of such a heinous act, justice will prevail.