Senator Susan Collins’ assertion that a presumption of innocence applies to Supreme Court nominees is based upon a faulty premise, and on a common misunderstanding of the law and logic, says public interest law professor John Banzhaf.
The legal presumption of innocence applies only to criminal proceeding, and then only because, as Blackstone explained, “it is better that ten guilty persons escape than that one innocent suffer.”
But surely no one would seriously argue that it would be better for ten persons who were guilty of sexual assault, perjury, or other serious wrongdoing should be confirmed as Supreme Court justices than that one innocent man should be denied such a lifetime appointment, explains Banzhaf.
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That’s why the legal presumption of innocence is applicable only in criminal cases, and not in civil law suits, agency proceedings, applications for the bar or for security clearances, or even job interviews.
For example, in a civil proceeding, as well as in most agency proceedings, Judge Brett Kavanaugh or any other person would not be entitled to any presumption of innocence.
If he were suing Prof. Christine Ford in an ordinary civil suit, he would have no such presumption. Instead, he would have the burden of proof, and would have to prove his case by a preponderance of evidence.
Even worse, were he to sue Ford for allegedly making a false claim that he sexually assaulted her, [defamation – libel and/or slander], he would not only lack any presumption of innocence, but would have to prove his case by clear and convincing evidence, an even higher standard.
Similarly, in most states an applicant to the bar, seeking the privilege of practicing law, not only has no presumption of innocence. Instead, he has the burden of proving his good moral character (e.g, no prior wrongdoings), and he likewise must do so by the higher standard of clear and convincing evidence.
If there is substantial evidence that an applicant for even the lowest level of security clearance has committed any crime, the burden of proof shifts to the applicant to present evidence to refute the allegation.
To apply the presumption of innocence to Kavanaugh – i.e., requiring challengers to prove their allegations by at least a preponderance of the evidence – would also be very illogical.
Suppose, for example, there was credible but far from conclusive evidence – e.g., the testimony under oath of a college friend – that a nominee had been a terrorist who killed many innocent people, and the evidence was strong enough to create at least a reasonable doubt as to his innocence.
It would surely make no sense to proclaim that the nominee should be confirmed because a presumption of innocence means that he must be approved unless the case against him can be established by proof which is slightly more convincing than his denial, argues Banzhaf.