The Attack on Kavanaugh Is Un-American

Libby LockeSept. 26, 2018 

https://www.wsj.com/articles/the-attack-on-kavanaugh-is-un-american-1538002857?mod=?mod=itp&mod=djemITP_h

The Rolling Stone rape hoax illustrated what happens when we adhere to preconceived narratives.

Critics of Judge Brett Kavanaugh at the Hart Senate Office in Washington, Sept. 24.

A reputation is a fragile thing. Last week was a testament to that simple truth. Within hours of being accused of an unsubstantiated and uncorroborated three-decades-old assault, Judge Brett Kavanaugh’s reputation as a highly respected jurist with an unblemished personal record was permanently damaged. Many rushed to declare Judge Kavanaugh guilty merely because he had been accused. Democrats all too happily called for him to withdraw his Supreme Court nomination, while his accuser’s lawyer basked in the left’s glory for slowing a Supreme Court nomination that seemed a sure thing.

As the #MeToo tidal wave crests, it is crucial to remember what happens when we blindly assume the truth of allegations rather than require evidence and adhere to the notion that people are innocent until proven guilty. I have seen firsthand what happens when people mindlessly follow preconceived narratives, disregard evidence, and indiscriminately believe accusers. I represented Nicole Eramo, a dean at the University of Virginia, who was victimized by one of the most notorious false rape accusations in recent history.

Rolling Stone magazine claimed in 2014 that Ms. Eramo had tried to cover up a horrific gang rape at a UVA fraternity. The campus exploded in protest, and Ms. Eramo—who had dedicated her career to helping survivors of sexual assault and had supported the purported victim—became a national villain, receiving public condemnation and death threats.

Although we were ultimately able to vindicate Ms. Eramo publicly, winning a $3 million jury verdict for defamation, we faced the tremendously difficult task of proving what had not happened: that the reported gang rape did not occur, and that Ms. Eramo did not dismiss the accuser’s allegations. That required months of litigation—not to mention the public backlash my law firm endured by daring to ask a purported victim of sexual assault questions about her allegations.

Judge Kavanaugh finds himself in a similar unenviable position: being expected to prove a negative. To vindicate himself in the eyes of those who assume his guilt, he must show that something else happened, for example that he was somewhere else when the incident—whose location is itself unspecified—allegedly occurred. To make matters worse, the purported assault took place before cellphones, text messages, emails—making it hard to find contemporaneous documents to demonstrate the falsity of the claim.

That’s precisely why Democrats have latched onto these allegations—because they are unprovable. It is her word against his. And how dare a white man, from a privileged background, confront his accuser—either himself or through his lawyer. Even if that lawyer is a woman. The left tells us that to do so would be “insensitive” and would “revictimize” her. But with that approach, due process is thrown out the window, all law is politics, and mob rule becomes the standard. It is un-American, and all Americans should be fearful.

Senate Republicans should not have invited Christine Blasey Ford to testify without first requiring her to answer written questions under oath and produce any documents supporting her claims. The polygraph results were finally released Wednesday, but where are those therapist notes? What questions was Ms. Ford asked, and how did she answer them, in each of those settings? What do others—witnesses either to the alleged assault or to Ms. Ford’s recounting of it—have to say about it under oath?

An adversarial process—with testimony by relevant witnesses supported by contemporaneous documents—is the best way to make a determination about Ms. Ford’s and Judge Kavanaugh’s credibility. A he-said-she-said back-and-forth without documents or witnesses will produce nothing except political theater.

Senate Republicans and Democrats—along with the American public—should remember that in civil and criminal settings, the prosecution bears the burden of proof. The Senate Judiciary Committee in its advice-and-consent role for Supreme Court nominations should not disregard this bedrock principle of American jurisprudence—it should firmly embrace it. Unless Ms. Ford can satisfy her burden of proof by calling witnesses with contemporaneous knowledge of her claims or producing relevant documents supporting her allegations, Judge Kavanaugh should be presumed innocent and his nomination should be confirmed.

At this point, all we know is that every purported witness denies any knowledge of the party where the assault is supposed to have happened—including a female friend of Ms. Ford’s, who says she doesn’t even know Judge Kavanaugh. Ms. Ford, through her Democratic lawyer, Debra Katz, has only referenced—or produced portions of—very self-serving documents. The American people should be permitted to hear from these witnesses and to review these documents. And they are entitled to answers to other relevant questions to determine whether this is—as many Republicans suspect—merely a political hatchet job.

When did Ms. Ford retain Ms. Katz? Who referred Ms. Ford to Ms. Katz? If this is not a political attack, why did she choose Ms. Katz as her lawyer? What communications did she, or Ms. Katz, have with Senate Democrats before publicly making these allegations? Why did Ms. Ford report her allegation to a Democratic politician, rather than to local law enforcement or to the FBI?

The controversy erupting around the Kavanaugh nomination underlines the power of the #MeToo movement, which is predicated on the idea that the dynamics between the sexes rob women of their power. But anyone still holding to that Victorian notion should have been disabused of it last week.

The circus this process has become demonstrates not only the power of #MeToo but also its potential as a weapon—and how an audience eager for victim narratives and sinister power dynamics can be galvanized without proof to shatter a man’s reputation built over a lifetime of hard work. When preconceived narratives replace the demand for facts and evidence, accusations become self-proving. Don’t be surprised when people with ulterior motives invent false accusations that destroy the innocent.

Ms. Locke is a partner in the law firm Clare Locke LLP, based in Alexandria, Va.