Lindsey Graham’s angry speech may have been the most satisfying moment of the second half of the Senate Judiciary Committee hearing for Republicans, at least after Brett Kavanaugh’s opening statement. However, John Cornyn may have hit closest to the mark in his five minutes. Cornyn tells Kavanaugh that this is the Senate’s most embarrassing moment since the McCarthy hearings, focusing on the abandonment of the normal standard of the burden of proof when allegations arise:
You talked in your interview with Martha MacCallum the other night about a fair process. Some of my colleagues across the aisle say, “Well, the burden is not on the accuser because this is a job interview. The burden is on you.” But you said you weren’t there and it didn’t happen. It’s impossible for you to prove a negative.
So I would just suggest that you have been accused of a crime and that a fair process under the United States Constitution and our notion of fair play means that the people who make an accusation against you have to come forward with some evidence. Isn’t that part of a fair process? …
And part of that means that if you’re going to make an allegation, there needs to be corroboration. In other words, you’re not guilty because somebody makes an accusation against you in this country. We’re not a police state. We don’t give the government that kind of power. We insist that those charges be proven by competent evidence.
And I know we’re not in a court; I’ve told my colleagues that, if we were in court, half of them would be in contempt of court. But you have been accused of a crime, and I believe fundamental notions of fair play and justice in our constitutional system require that if someone’s going to make that accusation against you, then they need to come forward with some corroboration, not just allegations.
The reference to the McCarthy hearings is directly on point. No one was at risk of getting thrown in prison in those hearings either, but a number of people were at risk of losing their jobs and having their reputations ruined over what turned out to be unsubstantiated allegations. That’s the same risk Kavanaugh faces, even in the job he has. The social panic at that time was Communist infiltration, and like sexual assault, it was a real and serious issue. Rather than present substantial evidence in those cases, though, McCarthy and others whipped up a panic to the point where the mere allegation of Communist sympathies were enough to ruin careers and lives.
We have revived the specter of McCarthyism thanks to the demolition of due process and reliance on the proper burden of proof. The Senate Judiciary Committee all but signaled open season on Brett Kavanaugh, encouraging a slew of uncorroborated and unsubstantiated allegations to become public, all while insisting that we must “believe” the allegation rather than examine the evidence, or even wait to see if any evidence exists.
It’s a disgrace, all the more so because we clearly haven’t learned from history. Cornyn hits the nail on the head here, and delivered a speech which should be remembered for its wisdom, clarity, and purpose.
Update: My Townhall colleague Matt Vespa hears from a Senate source that Senate Republicans have the votes in committee and the votes to confirm on the Senate floor:
With the Senate Judiciary Committee holding a vote at 9:30 A.M. tomorrow, a Senate insider has told Townhall that Kavanaugh has the votes to make it out of committee and the votes to be confirmed on the floor for a seat on the U.S. Supreme Court. Sens. Flake (R-AZ), Collins (R-ME), Murkowski (R-AK), and Manchin (D-WV) are expected to vote in favor of Kavanaugh. All the Republicans are voting yes. Also, in the rumor mill, several Democrats may break ranks and back Kavanaugh.
Bob Corker has already announced his support. After the hearing, Arizona prosecutor Rachel Mitchell briefed Senate Republicans on her conclusions. That may have been good enough to make Collins and Murkowski, and maybe even Flake feel comfortable with an aye.
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