We can’t be the only ones to notice that the phrase “lifetime appointment to the highest court in the land” is suddenly everywhere. Democrats and progressives can’t seem to talk about the Brett Kavanaugh controversy without using the phrase. The New York Times editorial board says Kavanaugh’s anger at Minnesota senator Amy Klobuchar disqualifies him from a “lifetime appointment to the highest court in the land.” CNN contributor Jen Psaki says an FBI investigation would determine “whether an individual being nominated for a lifetime appointment to the highest court in the land has the character to serve.” New York congresswoman Nita Lowey thinks “multiple sexual misconduct allegations are a good reason to delay a hearing and a vote on a lifetime appointment to the highest court in the land.” Senate candidate Beto O’Rourke notes that “we’re talking about a lifetime appointment to the highest court in the land. . . . We have to get this right.”
We suspect the phrase is meant to justify the concerted effort by Senate Democrats and most of the news media to scuttle the Kavanaugh nomination by circulating every insane calumny and baseless rumor they can get their hands on. If these allegations were made about just anybody, the thinking seems to go, we couldn’t take them seriously. But this is different. Why? Because it’s—altogether now—”a lifetime appointment to the highest court in the land.”
Our suspicions were confirmed on Saturday when the American Civil Liberties Union (ACLU) broke with its policy against endorsing or opposing judicial nominees and issued a statement opposing Kavanaugh’s nomination. “This is not a decision taken lightly,” the statement from the ACLU’s board of directors reads in part.
You read that correctly: “the burden is on the nominee.” The ACLU, an organization supposedly dedicated to defending the unjustly accused, believes in this case that the accused, not the accuser, bears the burden of proof. It is, of course, an egregious betrayal of the principle of presumed innocence, but that’s okay since this is, after all, a “lifetime appointment to the highest court of the land.”
A brief tour of the ACLU’s recent history makes clear that the group once regarded the presumption of innocence as a pillar of American life and law. A 2012 report headlined “Guilty Until Proven Innocent” worried about alleged criminals who are the victims of false accusations or claims that cannot be proven. A 2008 ACLU complaint against efforts to root out terrorists worried over “Unindicted Co-conspirators and the Presumption of Innocence” and condemned government officials who would make “public allegation of wrongdoing by an uncharged party,” by naming individuals and groups thought to be providing support for jihadist groups targeting America and its interests.
The ACLU has insisted over the years on the presumption of innocence and due process for Nazis, KKK members, the pedophiles at NAMBLA (the North American Man-Boy Love Association), terrorists, and known criminals. We’ve often wondered whether there might be anyone so horrible, whose alleged offenses were so great, that they might compel the ACLU to abandon these long-held principles? We found our answer, apparently, in a distinguished jurist who admits to drinking beer in high school.
The ACLU reasons that since this isn’t a criminal trial—Kavanaugh stands to be elevated, not sent to jail—presuming his guilt isn’t just permissible but necessary. But imputations of base conduct are real whether or not they’re made in the context of a criminal prosecution. The nominee, as he made clear in his testimony, must live with the consequences of these accusations forever. The claims against Kavanaugh, even without a shred of corroborating evidence, might easily be the basis of impeachment articles against the judge. He is on trial all right.
ACLU president Susan Herman’s insistence that the group’s opposition to Kavanaugh isn’t “based on predictions about how he would vote as a Justice” strains credulity. We find it impossible to believe that, say, a left-wing female judge, faced with similarly uncorroborated allegations, would elicit from the ACLU the chilling statement that “the burden is on the nominee.” Still, we are perfectly at ease with the idea of the ACLU endorsing and opposing judicial nominees. It long ago abandoned its principles to become just another on the long list of left-wing interest groups. It may as well embrace its role.
