OPINION:
The other day as my old friend Adam Walinsky and I were lamenting the craziness of the current political atmosphere, he asked me what earlier period I believe was as bad as the one we are living through today. Adam, a former speechwriter and aide to Sen. Robert F. Kennedy, once ran as the Democratic candidate for attorney general in New York and is a close student of history. I asked in return if he was thinking of the McCarthy era,
Adam said, no, today reminds him more of the 17th century Salem Witch Trials, when innocents were burned at the stake or had their lives ruined simply because people with the power to denounce them as witches did so in pursuit of their own interests. The charge was enough and no one dared rush to their defense without risking their lives and that of their families. It was a shameful period fortunately confined to Massachusetts. One can only wonder what might have happened had MSNBC, CNN and their Sunday news shows existed back then to have spread the virus.
Today any accusation of sexual misconduct can destroy one’s career regardless of when the alleged misconduct took place or how vague the charge. Instead of the legal presumption of innocence, the public assumption is that whatever the accused might say in his defense is a lying cover-up. The veracity of the accuser who can and often does remain anonymous is rarely questioned.
In many cases, the accused never gets an opportunity to face his accuser or find out just who it is making the charges. These protections were added to our Constitution to mitigate the power of harsh, drunken, misguided rulers who had absolute control and even whimsical powers over their subjects, and their elimination should be a cause for universal concern.
Celebrities, politicians and business executives have learned in the brave new “#MeToo” world in which we find ourselves that due process is a quaint but outmoded concept that can be safely ignored by wanting to take them down. Like those searching for witches in old Salem, their opponents possess a powerful weapon. Some accused of sexual misconduct are undoubtably guilty, but in many cases, we’ll never really know because no one really examines the charges brought against them. English jurist William Blackstone’s declaration that “It is better that ten guilty persons escape than that one innocent suffer” seems never to have occurred to those so willing to accept unsubstantiated allegations as, well, gospel.
California Sen. Dianne Feinstein has proven in the last week or so that she would have been right at home in Salem in 1692 or as a character in Arthur Miller’s 1950s play, “The Crucible,” depicting the insanity that prevailed back then. As the Senate Judiciary Committee met to consider the legal background and character of Judge Brett Kavanaugh, she was largely silent as her colleagues railed on about the dangers of allowing Judge Kavanaugh to sit on the U.S. Supreme Court. While New Jersey’s Cory Booker and California’s Kamala Harris played loose with the rules in their effort to sidetrack his confirmation, Ms. Feinstein simply watched and waited. It turns out that the good senator was biding her time until the last minute when she charged the Supreme Court hopeful with what else, but sexual misconduct.
She held a July letter from an anonymous accuser who claimed that in high school in the 1980s the judge and one of his classmates behaved badly toward her at a party. The senator sprang this unsubstantiated smear at the last minute as the clock was running out and the committee was preparing to vote on whether to send Judge Kavanaugh’s nomination to the floor for a vote.
She announced that she had a letter from someone whose identity she was dedicated to protecting, but whose charges raised serious questions about Judge Kavanaugh’s fitness and character. Ms. Feinstein hadn’t even shared the letter with her fellow Judiciary Committee members of either party, but said she had just turned it over to the FBI for investigation. This allowed the media to suggest it must contain information on possible criminal conduct by Judge Kavanaugh worthy of investigation.
Within a day, the FBI let it be known that there would be no investigation; the letter was simply added to the judge’s voluminous White House background file. The swiftness with which the FBI suggests that even they were able to figure out that the senator was simply grandstanding rather than seriously suggesting they investigate vague 35-year-old charges that smacked of a smear.
The good senator must have been shocked that her colleagues didn’t simply either delay the Kavanaugh vote or drive the poor man out of Washington. Then earlier this week, The Washington Post provided the name of the letter-writing accuser, hopeful that this would somehow validate 35-year-old unprovable charges against Judge Kavanaugh. After all, simple allegations without proof were enough back in Salem in the good old days.
It’s little wonder that Justice Ruth Bader Ginsburg recently described the Senate hearings on Judge Kavanaugh as a “highly partisan show” that is, as she put it, “wrong.” Ms. Feinstein’s willingness to smear a Supreme Court nominee in a last-ditch effort to block his confirmation makes Justice Ginsburg’s point.
• David A. Keene is an editor at large for The Washington Times.
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