Briefly, On The Presumption Of Innocence

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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  1. Avatar Marchmaine says:

    She reported the abuse to Dr. Brooke Lemmen, Dr. Lisa DeStefano, and Dr. Jennifer Gilmore, as well as the aforementioned Teachnor-Hauk. All of them told Thomashow that what Nassar was doing was medically appropriate.

    I’m afraid that your narrative leads to a very different conclusion; it isn’t presumption of innocence that protected Nassar, it was expertise. What you describe is a sort of Medical Gnosticism where outsiders are bamboozled by powerpoints and insiders are deferential to a higher-understanding. As you write: “Nassar had been investigated again and was again allowed to clear himself with claims that what he was doing was designed to help.

    The accusers were believed, its just that the investigators were swayed by the gnosticism of experts that the methods were beyond their understanding. That’s really not the “presumption of innocence” argument you are trying to make. If there’s a presumption argument to be made in the narrative you’ve put together, its against Medical expertise and oversight.Report

    • Avatar Sam Wilkinson in reply to Marchmaine says:

      @marchmaine The claimed expertise was the justification for presuming his innocence in those cases. Those who wanted a reason found it. That is the problem.Report

      • Avatar Marchmaine in reply to Sam Wilkinson says:

        I’m afraid that’s insufficient; it wasn’t simply claimed expertise, it was validated and confirmed expertise. You have the beginnings of a very strong case against institutional malfeasance by the Medical profession but you want your strong premise to underwrite your asserted premise. In order for the brief to do what you think it needs to do, there have to be dots connected between the motivations of the experts who assured authorities that the actions were justifiable – after having heard what the actions were and why those motivations hinged on a presumption of innocence among medical experts who, presumably, would know otherwise. Presumption of Innocence here seems a much weaker motivating force than other likely motivators… and your brief doesn’t account for that.Report

        • Avatar Sam Wilkinson in reply to Marchmaine says:

          @marchmaine There was no confirmation in 1992. There was no confirmation in 1997. There was no confirmation in 2004. There was the assumption that Nassar was not guilty of what he was being reported to have done. Whether or not that was based on his alleged expertise, or anything else, there is still the baseline: that those being told concluded otherwise anyway. They disbelieved victims. They believed in Nassar.Report

  2. Avatar LeeEsq says:

    There seems to be a growing tendency among liberal side of politics to treat sexual assault crimes as different than other crimes. This is a as calls for criminal justice reform and mistrust of police and prosecutors grows to. You can’t have it both ways. Either the burden should be on the state in all instances because prosecutors and police are not trustworthy or we assume the best of them and switch the burden to the defendant. The anti-presumption of innocence side in sex crimes has yet to propose any workable alternative.Report

    • Avatar Sam Wilkinson in reply to LeeEsq says:

      @leeesq Perhaps the mistrust is informed by the steadfast refusal to take these crimes seriously?Report

      • Avatar LTL FTC in reply to Sam Wilkinson says:

        Naah, it’s just short memory. Their operative mental image is of a fratty white guy type being protected by the presumption of innocence. It’s too historical for the Extremely Online to ask whether removing the presumption of innocence would have resulted in a more just outcome for, let’s say, the Central Park Five. The safeguards we already have failed them, but the solution is fewer safeguards? How many more CP5s do we mint to nail one Nasser at some theoretically earlier point in his systemic abuse?

        You can see the outlines of this mental image because much of the Kavanaugh coverage (see Michelle’s Goldberg’s NYT column and most of Slate) uses cultural signifiers to do a lot of the work of filling in the copious blanks. One witness who denies it, no dates, no contemporaneous anything – matters not because we all know what happens in rich white prep school parties and frat houses, so let’s not let pesky details get in the way of the obvious. It may lead to a pleasing outcome now, but what we all (think we) know – how we fill in the blanks in the absence of evidence – is a much bigger danger to people of color.

        Outside online chatter about the cause cèlebre cases, most jurors don’t have biases that are as fashionable as those held by lefty Twitter. They may fill in those larger blanks caused by lower standards differently.

        That said, Kavanaugh isn’t in a criminal trial and the new Avenetti claims may change all of this. I think Kavanaugh did it, but I know it’s because I’m filling in the blanks based on the stereotypes I hold about people like him. But the point still stands: we fill in the blanks with our biases, and reasonable doubt is a bulwark against that.Report

        • Avatar Sam Wilkinson in reply to LTL FTC says:

          @ltl-ftc the Central Park Five are a great example, because they did not enjoy, at any point, the presumption of innocence. So even at that level, the concept itself is hokum weaponized against outgroups.

          Maybe we would want to say, “They should have been believed!” which seems like a good answer. But there is not a choice between believing the CPF and believing Nassar’s victims. It is possible to believe both. It is possible to pursue justice without deciding, ahead of time, who does and doesn’t deserve it. Or perhaps it isn’t. But if it isn’t, we should acknowledge that more openly.Report

    • Avatar Mike Dwyer in reply to LeeEsq says:

      Lee – this is one of the best explanations I have seen of this dynamic and the problems on both sides of the argument. Thanks for putting it so clearly.Report

  3. Avatar j r says:

    I second @Marchmaine.

    The presumption of innocence is a legal principle that guides the burden of proof in a criminal trial. When Nassar was finally brought to trial, the government was able to get a conviction despite that relatively high bar, which implies that the presumption of innocence wasn’t the reason that he was able to abuse these women for all of those years. What protected Nassar was much more a combination of institutional self-protection, bureaucratic ineptitude, the cult of expertise that @Marchmaine mentions above, and good old-fashioned misogyny.

    I can think of plenty of cases where the presumption of innocence likely allowed someone to get off completely or with a much lighter sentence than what they would have gotten if the evidence had been better (Bill Cosby comes to mind, so does O.J. and George Zimmerman).

    And I’m not bringing this up just to say something negative on the post. If there is a problem with the current standards that make up the burden of proof in a criminal trial and therefore affect criminal investigations, wouldn’t it be better to talk about cases where the burden of proof is actually relevant?Report

    • Avatar Oscar Gordon in reply to j r says:

      Concur with @jr, the presumption of innocence is entirely upon the government bringing criminal charges. Claiming that ideal is responsible for institutions protecting their own is burning the Savanna to kill the lion.

      If you want to demonstrate that the presumption of innocence is the problem you think it is, you will need to show that society at large is consistently unwilling to enact social penalties for bad behavior for people accused of bad acts (but who avoid convictions), regardless of who the person is or what their social standing is.

      What you can show is that society is too willing to assume the innocence of powerful and/or popular persons, regardless of the evidence available, and often times regardless of a criminal conviction (how many people you figure still think Bill Cosby is innocent and buy his lawyers claim that the conviction is the result of institutional racism?).Report

      • Avatar Sam Wilkinson in reply to Oscar Gordon says:

        @oscar-gordon “you will need to show that society at large is consistently unwilling to enact social penalities for bad behavior for people accused of bad acts” That’s precisely what Nassar is an example of.Report

        • Avatar Nevermoor in reply to Sam Wilkinson says:

          I agree with both this comment and JR’s.

          This is not a story about the harm caused by a too-high standard of proof in criminal trials. I don’t believe for a second that any of the people protecting Nasser did so because they felt it was more-likely-than-not he was a serial rapist but did not believe they could so-prove beyond a reasonable doubt. Instead, I believe they did so because he was valuable to them in a way the women weren’t, and because “hysterical young girl” was a more digestible story line than “colleague is secretly a monster.” It is also clearly correct that when the claims were investigated and prosecuted by people of good faith, the burden of proof was easily met.

          If this story ties to “burden of proof” questions at all, it does so only in the cultural sense that you and Oscar are discussing. In other words, when we are NOT talking about criminal lawsuits and potential incarceration, how do we assess conflicting claims about past crimes. That’s a… timely… question, fairly represented by your pull-quote, and one I think the GOP is trying very hard to get wrong.

          I think your post presents a powerful reason not to apply a beyond-a-reasonable-doubt standard to public opprobrium, but no case at all that our criminal justice system itself requires a lower standard of proof.Report

  4. Avatar Philip H says:

    LeeEsq: A system that could repeatedly find in Larry Nassar’s favor is simply not equipped to deal substantively and meaningfully with abuse. It is too tilted, overwhelmingly so, in favor of abusers and against victims. It is possible to imagine administrative fixes – including mandatory reporting with criminal consequence for those that do not, mandatory investigations of reported abuse with criminal consequence for those that abstain, and exposure to financial liability of everybody involved – but what can be done about the deep cultural cancer that leads to the wholesale dismissal of victims? What fix is there for a persistent belief that men’s reputations matter more than the well-being of victims?

    Or, the presumption of innocence isn’t in play with sexual assault allegations against powerful men by women because we are still a patriarchal nation whose men want to protect their power at all costs. These women never got the chance to have the State advocate for them at the time the abuse occurred because their concerns were dismissed by the organs of the state whose job it was to investigate the allegations. What we want is for that to stop wholesale,Report

  5. Avatar Philip H says:

    A system that could repeatedly find in Larry Nassar’s favor is simply not equipped to deal substantively and meaningfully with abuse. It is too tilted, overwhelmingly so, in favor of abusers and against victims. It is possible to imagine administrative fixes – including mandatory reporting with criminal consequence for those that do not, mandatory investigations of reported abuse with criminal consequence for those that abstain, and exposure to financial liability of everybody involved – but what can be done about the deep cultural cancer that leads to the wholesale dismissal of victims? What fix is there for a persistent belief that men’s reputations matter more than the well-being of victims?

    This statement aptly applies to the way the Senate is dealing with allegations against the current SCOTUS nominee. In that arena, repudiating the assumption by removing those who make it from power through elections seems like a good start.

    Their stories did not change. Their evidence did not change. Their accusations did not change. They said the same things in 1992 that they said in 1997 that they said in 1999 that they said in 2004 that they said in 2014 that they said in 2016. Everything about what they were claiming remained remarkably consistent. It took their sheer numbers before so many could finally grasp that Nassar was the one lying. But those sheer numbers only existed because of the deference that Nassar enjoyed again and again and again. That deference is both legal and cultural, and in both cases, it acts as a shield for abusers, enabling them to continue doing what they have always done.

    Again, we see a parallel in the SCOTUS nomination. One wonders how many women have to come forward to get their stories credibly heard and acted upon? If hundreds had to be used to bring down Dr. Nassar, will a SCOTUS nominee take thousands?

    The popular saying goes that we would rather one hundred guilty men go free than a single innocent man go to jail. Maybe so. There are surely an incredible number of people sacrificed to achieve such an outcome. That sacrifice is worth noting and worth remembering. Their suffering matters as much as any high-minded ideal. Or at least, it ought to.

    Would that this were so, but when one looks at the number of men incarcerated while factually innocent, and one looks at their almost uniformly being men of color, one draws the conclusion that this is about protecting white male power. As was the operation conducted to protect Dr. Nassar.Report

    • Avatar Saul Degraw in reply to Philip H says:

      I think it is pretty much a done deal that Kavanaugh is getting on the court. A car accident is probably more likely to keep him off the court than these hearings.

      The dirty secret of democracy is that 95 percent of politics is about tribal identity. The Republicans could dump Kavanaugh and find an equally conservative candidate. However, this would be giving Democrats and/or liberals a “win” and that can’t be. So circle the wagons it is and make everything more of a spectacle by hiring the Maricopa County prosecutor to question Dr. Ford.

      The causes that increased negative partisanship in the United States are decades long and complicated. We are at the Apex now.

      One of the weirder aspects of this “Are we slipping into authoritarianism or not?”moment is seeing the authoritarians perform the dance of democracy and transparency. Did Trump really want to speak to the U.N. General Assembly? No. Did everyone else want to hear him? Probably not. But Trump is still the President and he speaks at the U.N. because it is a tradition.

      The same I feel is true for the Kavanaugh hearings.Report

      • Avatar Stillwater in reply to Saul Degraw says:

        My own two cents: the whole shebang is in the hands of Susan Collins. As she votes, so will Murkowski and a few red-state Dems.

        Add: Which shows just how *internally* political this whole process has become: Kav’s approvals/support is limited pretty much to the conservative base, yet red-staters are waffling as if the purely electoral calculus isn’t crystal clear.Report

      • Avatar Philip H in reply to Saul Degraw says:

        I think it is pretty much a done deal that Kavanaugh is getting on the court. A car accident is probably more likely to keep him off the court than these hearings.

        You may be right; though if Murkawski and Collins want to remain Senators they will have a lot of uphill work to do if they vote to confirm. And frankly if they do the Senate may well flip.

        The dirty secret of democracy is that 95 percent of politics is about tribal identity. The Republicans could dump Kavanaugh and find an equally conservative candidate. However, this would be giving Democrats and/or liberals a “win” and that can’t be. So circle the wagons it is and make everything more of a spectacle by hiring the Maricopa County prosecutor to question Dr. Ford.

        this isn’t exactly a secret – at least not around here.Report

      • Avatar Iron Tum in reply to Saul Degraw says:

        Ssssh! You’re supposed to pretend this post is about Nasser!Report

        • Avatar Sam Wilkinson in reply to Iron Tum says:

          It is about Nassar. He is a real person who caused real pain. He was repeatedly enabled by everybody around him. Those individuals chose to believe, again and again and again, that he was innocent.Report

  6. Avatar Jaybird says:

    The MSUPD insisted that there was nothing that it could do, as it had no jurisdictional authority over the school’s Athletic Department.

    Should we give police departments more authority?

    (And, quite honestly, how in the flying heck does it not have jurisdictional authority over stuff like this? If someone was shot in the Athletic Department, would they say the same? What the hell?)

    A system that could repeatedly find in Larry Nassar’s favor is simply not equipped to deal substantively and meaningfully with abuse.

    I agree with this. I’m not sure that presumption of innocence is the best place to start.

    Of all of the problems you’ve mentioned (or were mentioned above), the presumption of innocence is the only one that applies to the schlubs. You weaken presumption of innocence without addressing other stuff (look at Marchmaine’s criticisms, for example), you’re going to be giving more power to the people who are already powerful.

    The answer to Quis custodiet ipsos custodes? isn’t “well, we need to take away one of the few things protecting the schlubs”. It’s we need better watchmen watchmen.

    Though, I’ll grant, it’s a hell of a lot easier to take away one of the few things protecting the schlubs…Report

    • Avatar Sam Wilkinson in reply to Jaybird says:

      @Jaybird It is not lessening the presumption of innocence to investigate these reports more aggressively, nor does it lessen the presumption of innocence to punish those who ignore it having been reported.

      To put that another way, I wonder how many police departments respond to reported arsons by saying, “Nah, that never happened,” without bothering to at least check out the claim. I wonder how many visit the accused and ask, “Okay, but are you an expert in arsons?”Report

      • Avatar Jaybird in reply to Sam Wilkinson says:

        I wonder how many police departments respond to reported arsons by saying, “Nah, that never happened,” without bothering to at least check out the claim. I wonder how many visit the accused and ask, “Okay, but are you an expert in arsons?”

        That’s not a problem with the presumption of innocence, though.

        If you want me to agree that there’s a problem that needs to be addressed, hey, I’m there.

        If you want to start saying that the problem is with the presumption of innocence, then I am saying that the problem is not with the presumption of innocence.

        Please don’t interpret me saying “there is not a problem with the presumption of innocence” as me saying that there is not a problem. There *IS* a problem.

        This problem will not be addressed by doing freaking *ANYTHING* with the presumption of innocence. Don’t even bring the presumption of innocence into it.

        We have corrupt cops. We have lazy cops. We have a cult of expertise. Heck, we could even get into issues involving the problems involved with race that happen to be here.

        But the presumption of innocence is one of the circles of salt we have around the pentagram that is our civilization. We don’t want to touch the circle of salt. That would be bad.Report

        • Avatar Sam Wilkinson in reply to Jaybird says:

          The presumption of innocence exists legally; we can agree that it should (although I suspect we both agree that it does not to nearly the extent that some people like to insist upon). The cultural presumption of innocence though is something else.Report

          • Avatar Jaybird in reply to Sam Wilkinson says:

            The cultural presumption of innocence though is something else.

            When you go to the cops and they say “not my problem”, that’s not a cultural presumption of innocence.

            Calling that failure on the part of the authorities “a cultural presumption of innocence” is a mistake.

            You are making a mistake.Report

            • Avatar Sam Wilkinson in reply to Jaybird says:

              @jaybird Did the people surrounding Nassar believe that he was guilty or innocent?Report

              • Avatar Jaybird in reply to Sam Wilkinson says:

                The people surrounding Nasser didn’t care whether he was guilty or innocent. They were operating in service to power and doing everything to avoid embarrassment of The Institution.

                Which is a completely different problem that requires a completely different solution than the one that happened to also encompass Emmett Till.Report

              • Avatar Sam Wilkinson in reply to Jaybird says:

                @jaybird “The people surrounding Nassar didn’t care whether he was guilty or innocent.” We very much disagree about this, which may be near the root of our issue. I think it would be entirely fair to accuse these folks of fully believing in Nassar’s innocence. It did not occur to them that it could be the other way.Report

              • Avatar Jaybird in reply to Sam Wilkinson says:

                Seems to me that you’re inappropriately assuming their innocence.Report

              • Avatar Sam Wilkinson in reply to Jaybird says:

                @jaybird The “innocence” being assumed here is a criticism of their fundamental inability to consider otherwise.Report

              • Avatar Jaybird in reply to Sam Wilkinson says:

                Do you give that benefit of the doubt to the Catholic Church?

                Because I’m pretty sure that you know that the bishops and cardinals sweeping stuff under the rug there knew that stuff was going on. Seriously. If a Catholic were arguing what you’re arguing right now, how much contempt would you have for their beliefs in the pristine naivety of their leadership?

                Is it one of those things where you want to believe that this secular institution is significantly different from the obviously wicked and hypocritical religious one?Report

              • Avatar Sam Wilkinson in reply to Jaybird says:

                @jaybird I’d swear we’re talking past each other but just so I’m clear, there seem to be two possibilities that we’re talking about:

                1. That enablers knew exactly how bad the abuse was and looked the other way.

                2. That enablers believed that the abuse did not occur or was not meaningfully “bad” and looked the other way.

                Is that fair?Report

              • Avatar Jaybird in reply to Sam Wilkinson says:

                Let me say again what I said before which I don’t think is covered by either of the above:

                The people surrounding Nasser didn’t care whether he was guilty or innocent. They were operating in service to power and doing everything to avoid embarrassment of The Institution.Report

              • Avatar Oscar Gordon in reply to Sam Wilkinson says:

                I’d say that 2) requires a lot more work before I’d believe it to be true. Maybe it was, the first or second time. But at some point, everyone knew, at some level, that he was guilty, but by then, it was more important to protect the institution.Report

          • The cultural presumption of innocence though is something else.

            I think THIS is a big part of the problem today and what people fear will happen with a #metoo movement that is already going sideways. The social media tools available to ‘culture’ to attack people they have already decided are guilty are many. Monica Lewinsky has talked at length about how her life was destroyed because her scandal happened at the dawn of the internet. That problem is a thousand times worse now. When you have self-righteous people on both sides of the aisle that feel justified in doing these things, it’s a recipe for abuse.Report

      • Arson is probably a bad analogy because there is usually a deep-pocketed corporation who has an interest: the insurance company that has to pay off. No fire department can afford (for long) to simply blow off the insurance companies with a “We’re not going to investigate the cause.” If the fire department rules arson, no police organization can afford (for long) to blow off the insurance companies with a “We’re not going to investigate the possibility that the policy holder set the fire.”

        A similar thing is starting to happen in sports in the US, at least in the smaller ones that operate under the auspices of the US Olympic Committee. The insurance companies that underwrite the liability policies are pushing much harder for the governing bodies to take abuse/assault seriously, institute training programs, and bring the authorities in when there’s suspicion.Report

      • Avatar Pinky in reply to Sam Wilkinson says:

        “It is not lessening the presumption of innocence to investigate these reports more aggressively”

        I wouldn’t think so either. But that’s the way you framed it. It’s nearly impossible to reconcile this statement with your article.Report

  7. Avatar Chip Daniels says:

    A lot of what gets confused in discussions of “presumption of innocence” is blurring of distinctions between legal action and social censure.
    The standards we use are quite rightly different.

    In the same way that the standards are looser for civil trials than criminal ones, the presumption of innocence for being imprisoned might be very high, but lower for employment dismissal, and even lower for social censure.

    Maybe the police needed more evidence to arrest Nassar, but the university didn’t need as much to dismiss him.

    Its funny how, if the university had dismissed him for simply being “the wrong fit”, or “not a team player”, or any of the other hundred bullshit reasons companies give at-will employees, no one would have batted an eye, but dismissing him because “we suspect you might be creepy” is considered unjust.Report

    • A smart employer, of course, does dismiss a suspected creep for an ostensibly anodyne reason.

      While we wish it weren’t the case, there are such things as false claims and rumors exaggerating reality to the point of deceptiveness. This is sometimes motivated by malice and sometimes by negligence.

      And there are such things, as the Nassar story illustrates, of true claims of awful things which are disbelieved for no good reason.

      Social sanction and loss of employment, while less serious than imprisonment, are nevertheless serious things with real consequences for those who receive it. It is right that such things are withheld until some level of evidence accumulates. Nassar’s story is one in which that critical level of evidence was far exceeded yet nothing happened. The OP calls out the root cause: a “deep cultural cancer that leads to the wholesale dismissal of victims”.

      That’s the issue here, as I see it.

      It’s not that there ought not be a presumption of innocence. Taking victims seriously and dealing with them with respect and an eye towards preventing future harm can be consistent with the principle that guilt is not established by an accusation and sanction ought to be withheld until guilt is established. While navigating between these two indispensable priorities may often be difficult, it is possible to imagine doing so. The more difficult problem is that ugly things baked in to our culture blind decision-makers to seeing when that presumption has been overcome.Report

      • Avatar Chip Daniels in reply to Burt Likko says:

        It also isn’t enough to talk about this from a systems approach, where we assume the machinery of justice delivers the same output of justice for the same input of facts.

        The most important input is the social rank of the persons involved. Had Nassar been a janitor and his accusers daughters of alumni,or had he been black and they white, the machinery would have returned a far different output.Report

      • Avatar DavidTC in reply to Burt Likko says:

        While we wish it weren’t the case, there are such things as false claims and rumors exaggerating reality to the point of deceptiveness. This is sometimes motivated by malice and sometimes by negligence.

        Rumors are easy to dismiss, because there aren’t actual accusers.

        As for false claims…there are places where, in fact, there might be incentive to make things up. (As Republicans have alleged with the Kavanaugh accusers.) Now, I’m not saying no accusators can have an incentive to lie, nor am I saying that everyone who does have an incentive to lie is lying. I’m not even saying people can’t lie randomly, for reason.

        What I am saying is, at a certain point, if multiple people with no obvious incentive to lie about someone, and have no connection, have come forward and recounted abuse allegations, one of two things must be true: a) there is actual abuse, or b) the person being accused often behaves in a manner so badly that people who interact with them have responded by making up abuse allegations.

        Let’s imagine a hypothetical world where Nassar hadn’t touched anyone at all, medical or otherwise, and his patients literally just made up the entire thing. Well, if he’s in a public-interacting position and multiple unrelated people dislike him enough to make up _serious abuse allegations_ against him…his employer should logically, at some point, ask: Is this really the guy I should be employing? A doctor who is, at best, so horrifically off-putting that his patients keep trying to _frame him for sexual assault_? What the hell sort of behavior on his part is causing them to do that? I should investigate this.

        It’s perfectly reasonable to say ‘Social sanction and loss of employment, while less serious than imprisonment, are nevertheless serious things with real consequences for those who receive it.‘, but honestly, there are a lot of really bad reasons to fire people.

        ‘Your interaction with other humans while on our dime, regardless of what you are _actually_ doing, is _somehow_ resulting in multiple sexual assault allegations being leveled at you.’ is…not a particularly bad reason to fire someone.

        I mean, if you want to argue that we should extend employment protections _that_ far, maybe we should, but let’s first extend those protections to, for example, ‘cannot fire workers for being sick’ and ‘cannot fire workers for refusing to work off-the-clock’. Firing people for ‘behaving in a manner that repeatedly attracts sexual assault allegations and seriously damaging this company’s reputation’ is, like, way way down the list of things we should protect. (And, as we’ve seen, companies don’t even seem to fire people for that anyway!)Report

    • Avatar Pinky in reply to Chip Daniels says:

      “if the university had dismissed him for simply being “the wrong fit”, or “not a team player”, or any of the other hundred bullshit reasons companies give at-will employees, no one would have batted an eye”

      Investigate him as little as possible and transfer him to another parish?Report

  8. Avatar fillyjonk says:

    the problem I see with eliminating a presumption of innocence is that the people who are already unfairly treated in the justice system will just be more unfairly treated. And the people who manage to slide through now will still manage to slide through.

    Yes, the young women should have been listened to and Nassar is a piece of (redacted). Same with Cosby. Same with any man who thinks he’s entitled to that kind of thing.

    One thing I’m realizing in all of this is that almost every woman I know has SOME story. In some cases (like mine), it’s relatively minor issues and it was with a same-aged classmate doing something you didn’t want them doing. In other cases, worse cases, it’s an older man using his influence to get what he wants.

    People are gross and awful and I don’t know what the answer is, but my faith in humanity is kinda at an all-time low.Report

  9. Avatar Oscar Gordon says:

    Let’s just be very clear about what the actual problem is here. It is not the Presumption of Innocence. The real issue is the Protection (or Poison[1]) of Position.

    Nasser was protected because he was in a powerful enough position that accusations against him would threaten the positions of others around him, hence he was protected. Because there was no larger threat against protecting him.

    [1] A poor position can be terrible. If a victim of a violent crime is known (or suspected) of being a gang member (etc.), the police will probably not devote much in the way of resources to solving the crime. Likewise, a positional differential, such as a respected doctor and a young gymnast, can result in people not taking the accusation seriously.Report

    • Avatar Maribou in reply to Oscar Gordon says:

      @oscar-gordon When it comes to rape and child sexual abuse, I really don’t think Protection of Position (which I agree is key in understanding injustice overall) is really enough to cover it.

      People are *willfully* blind to this happening. And not that they should be treated differently, but rich young white women who report stranger rape on the streets are treated just as poorly and indifferently by police as are other victims. Many many women are treated so poorly by hospitals when they go to get rape kits done that they feel re-victimized. This includes rich white women with female nurses. Which Power of Position does not cover.

      Within families, people who have relatively more power in the family overall once they are adults, are either disbelieved, or can be *believed* by family members who nonetheless refuse to treat the accused within the family any differently than before, and expect forgiveness of the accused by their victims, often in a sort of unconscious blindness that mirrors the willful blindness of institutional actors. Again, this happens whether the victims currently have more or less power than the accused does.

      It’s not just cultural presumption of innocence, it’s cultural denial of guilt by any means necessary.

      Other crimes aren’t treated this way, especially when there’s no Power of Position to account for it.Report

      • Avatar Oscar Gordon in reply to Maribou says:

        Yes, part of that is just a cultural blindness* to these kinds of offenses, but it’s still not related to the Presumption of Innocence.

        *Or perhaps it is a desperation to find any kind of rationale to avoid confronting the offense, because it makes so many of us uncomfortable in a very profound way.Report

        • Avatar Maribou in reply to Oscar Gordon says:

          @oscar-gordon I understand your desire to separate the legal principle of Presumption of Innocence from the social desperation to treat guilty, dangerous people as innocents, and I would even agree with you IF the socially desperate didn’t continually drag the presumption of innocence into the social realm as part of their defenses.

          Given that that happens all the time, there’s no way in heck you’re going to convince me the two things don’t have a relationship.Report

          • Avatar Oscar Gordon in reply to Maribou says:

            Just got done working out and I’m on my phone, so this will be brief.

            Proposal: There is a Presumption of Innocence, and there is a Denial of Guilt, and there is the I Can’t Be Bothered, and these are different things.

            The Presumption of Innocence takes the accusation seriously, but requires that someone present evidence and make a case to some satisfaction.

            The Denial of Guilt is the metaphorical closing of the eyes, plugging of the ears, and loudly singing, “LA LA LA I CAN’T HEAR YOU!!”.

            I Can’t Be Bothered is when a person in a position of authority/power just refuses to take the accusation seriously because they don’t feel the accuser has a right to even the veneer of Justice.Report

            • Avatar Sam Wilkinson in reply to Oscar Gordon says:

              @oscar-gordon Does the outcome change in each of these?Report

              • Avatar Oscar Gordon in reply to Sam Wilkinson says:

                Yes.

                The difference is less in the outcomes, and more in the causes.

                Denial of Guilt is usually a case of, “I know Larry, Larry would never do what you are accusing him of, you are wrong, or lying (because if you are telling the truth, then I am a horrible person[1] for allowing Larry to fool me, and I can’t handle that)”.

                I Can’t Be Bothered stems from someone recognizing that taking the accusation seriously would open up a whole world of work/trouble/headaches for the person hearing the accusation, and they just don’t want to deal with that right now (if ever). Thus they will look for any reason or rationale, no matter how thin, to discount the accuser.

                Neither has anything to do with Presuming Innocence, other than the person may float the concept as cover for the real reason they don’t want to believe the accuser.

                That said, when you have people close to the accused engaging in Denial of Guilt, and people in authority who really just Can’t Be Bothered, there is a very good chance justice will be delayed or denied. I don’t know how to overcome Denial of Guilt, since that often comes from a pretty emotional place. But Can’t Be Bothered can be fixed legislatively. If every person in authority over Nassar was under indictment, from the University and the various PDs who ignored things, people would start to be bothered.

                [1] Because we have a weird idea that somehow being conned by a person is reflective of the intellect or character of the person being conned.Report

              • Avatar Maribou in reply to Oscar Gordon says:

                “Neither has anything to do with Presuming Innocence, other than the person may float the concept as cover for the real reason they don’t want to believe the accuser.”

                The problem is that they float it to *themselves* as an excuse. And they insist on it to society. So if all those Denial of Guilt people insist they are Presuming Innocence people, how is there not a relationship between the two groups? The people insisting constitute the relationship, by making the two circles in the Venn diagram overlap.

                It may be a crappy, unjust relationship, that doesn’t deserve to exist, but the relationship is there.

                Also, very very very often, in social rather than legal contexts, “Presuming Innocence” is “I don’t want to believe these people” even when it presents as you describe, as needing some more significant evidence before making a judgement. The bar gets set to some mythological standard that reality almost never matches. (This is why the thing I usually harp on is dismantling myths, rather than who is presuming what.)Report

              • Avatar Oscar Gordon in reply to Maribou says:

                Yes, people lie to others and themselves and cloak their pathologies in high minded ideals. So we should, what, dispense with the high minded ideals because people will co-opt them? Or should we call bullshit on those people for cloaking themselves in righteousness?

                Like I said before, we don’t burn the savanna to kill the lion. You go hunt the damn lion, or you find a way to live with it.

                I mean, really, what is being asked here? Assuming we aren’t actually trying to attack the legal standard, what is the ask?

                That our civil authorities take victim claims seriously? I am happy to sign on to that.

                That private authorities take victims claims seriously? I’ll sign onto that as well. And in both of the above, I think we should be some serious teeth behind such things. Make it hurt for people to have an attitude of I Can’t Be Bothered.

                But are you asking that ‘We’ believe the victims? And by ‘We’, I mean everyone in our entire society? Good luck with that.Report

              • Avatar Maribou in reply to Oscar Gordon says:

                I’m asking that “We” and by that I mean the overwhelming consensus of our society, not “everyone”, stop operating on Denial of Guilt and start operating on Likelihood of Trauma Being Real.

                And if that means offering people who claim to be victims more of the Presumption of Innocence, leaning toward innocence, weight shifted toward innocence, we currently mostly afford the accused – again, *socially* not legally – we don’t huff and puff about it on the premise that Presumption of Innocence (legal) requires that we apply Presumption of Innocence (social) to the accused at the expense of their accusers.

                Yup, it’s a huge ask. Probably bigger than the limited and specific ones you list. But the ones you list are not ever going to *work* as long as the one I’m asking for doesn’t happen.Report

              • Avatar Oscar Gordon in reply to Maribou says:

                I honestly don’t think asking that people give accusers a modicum of respect and trust that they are forthright is too much[1]. I certainly don’t have a problem doing that.

                But let’s not kid ourselves, people really like binaries. It’s really hard for people to hold the idea in their head that an accuser and an accused are both deserving of a measure of respect until investigations are concluded and the facts are laid out.

                But nope, people can’t seem to do that. If the accuser is being forthright, then the accused must be guilty; and if the accused is to be believed, then the accuser must be lying or mistaken. And if the person you are talking to feels differently than you, they are either a fool or carrying water for a monster. Because sexual assault is just another culture war proxy fight.

                But let’s be honest about what will happen if we penalize the accused too harshly when the facts are thin on the ground.

                [1] ETA: We certainly don’t have this problem when it is the state accusing a person of wrongdoing.Report

    • Avatar Sam Wilkinson in reply to Oscar Gordon says:

      @oscar-gordon Nassar was repeatedly presumed to be innocent. Those tasked repeatedly returned to the idea that he was not guilty of what he was being accused of, and acted from there.Report

      • Avatar Oscar Gordon in reply to Sam Wilkinson says:

        No, he was never presumed innocent, his guilt was denied, and his accusers discounted and dismissed.

        People who presume innocence do not consequently work to dismiss/silence accusers and discredit/hide/destroy evidence.

        ETA: By their actions you will know them.Report

        • @oscar-gordon I think we almost certainly disagree on what was being presumed of Nassar. Multiple examples – most notably, 1992 and 2004 – show people confronted with evidence, or allegations of available evidence, and either flat out refusing to investigate it (1992) or accepting Nassar’s explanation (2004). Those people thought, for certain, that Nassar was innocent.Report

          • Avatar Oscar Gordon in reply to Sam Wilkinson says:

            Yep,we disagree. Prove your case. Demonstrate to me those people thought Nassar was innocent. It’s quite simple to do. Show me when those people took what they knew to the authorities because they trusted that a person like Nassar would be afforded the full weight of the legal ideal.

            Remember, Nassar was white, and well respected, with powerful friends. He could afford quality legal representation. He is one of the few people who will not be railroaded by the system.

            Again, people who are presuming innocence trust the system to reach the correct result.

            But people who bury things are not presuming innocence, they are denying guilt or can’t be bothered. I don’t care what they claim, I look to what they did.Report

  10. Avatar DavidTC says:

    As I said the last time this came up: If several people independently allege somewhat similar abuse from someone in a position of authority, there needs to be some sort of process by which that person is, _at least_, monitored and not allowed to interact with people alone.

    Hell, let’s pretend that Nassar actually wasn’t abusing children, that he _actually had_ some groundbreaking medical procedure:

    Nassar was, by the plain facts of the complaints and because he admitted to physically doing what he did (He just always tried to justify it as medical), repeatedly committing deliberate medical malpractice. Doctors are not supposed to do things that make their patients extremely uncomfortable, especially things like manipulating their genitalia, without their full consent, and certainly shouldn’t be doing it over and over. Once or twice is perhaps a screwup, they forgot to clearly ask or explain something, and all doctors commit slight accidental malpractice at one point or another, but he apparently did it _all the time_. He didn’t even slightly show any concern about a behavior of his that multiple patients had complained about and several actively resisted! That is utterly unacceptable behavior for a doctor even if those _were_ actual medical procedures he was doing.

    Yet his employers never said ‘Look, we’re trusting you that this is medical, but you can’t keep doing it suddenly without their full informed consent and someone else there to monitor it. We’ve had too many complaints.’

    Why didn’t they say that? Because…they did not think it was their job to provide any oversight. Other doctors were told of this thing that _had to be_ malpractice, and did nothing.Report

  11. Avatar Chip Daniels says:

    “Hi, I’m here to pick up your daughter. We have a date.”

    “Hey, aren’t you the guy who was accused of drugging and gang raping a high school girl?”

    “Yeah, but I was acquitted.”

    “Oh, OK. She’ll be right down.”Report

  12. Avatar James K says:

    I think many of you are missing Sam’s point. He’s not talking about the presumption of innocence regarding conviction – Nassar’s case didn’t get hung up by a jury acquitting him for lack of evidence, nor because a prosecutor refused to bring charges because they didn’t think a jury would convict.

    Nassar got away with it for so long because people who could and should have investigated allegations either didn’t do so, or made only the most token effort. It is this presumption – that Nassar was innocent without even investigating that Sam is calling for an end to here.Report

    • Avatar Sam Wilkinson in reply to James K says:

      @james-k On the one hand, yes. On the other hand, I find it frustrating that you managed to write in less than 50 words what it took me more than 2000 to apparently only barely say.Report

    • Avatar Jaybird in reply to James K says:

      Going to the cops and having the cops say “nah, not our problem” is *NOT* cultural assumptions.

      It’s *INSTITUTIONAL* at that point. We’re not talking about his peers not doing stuff. We’re talking about his superiors and the authorities.Report

      • Avatar Sam Wilkinson in reply to Jaybird says:

        @jaybird Can’t the two be feeding one another?Report

        • Avatar Jaybird in reply to Sam Wilkinson says:

          Depends on whether there are any institutions that actually handle this stuff the way that you think it ought.

          If we can’t find a single institution that handles this the way that you think it ought to be handled (and not just American culture, let’s hit all of them across the world), then we might have a bigger problem than culture.

          “Humans have a problem”.Report

          • Avatar Maribou in reply to Jaybird says:

            @jaybird It wasn’t only the cops who treated it that way. People’s parents treated it that way, people’s coaches treated it that way, other doctors treated it that way.

            Culture is, specifically, particular social expressions of people’s humanity within particular small or enormous communities.

            And for this problem, I think humans do have a problem, but that problem is worse in some places and cultures than it is in others.

            For example, it’s worse in Prince Edward Island than it is in Nova Scotia, as far as several federal reviews can figure out.

            Teasing out *why* some places are more poisoned than others is no doubt incredibly difficult work, and pretending it’s particular to precise institutions or precise cultures and no one else has a problem is not true or effective — but pretending it is a purely universal, unfixable, homogeneous problem is also not true or effective.Report

    • Avatar Mike Dwyer in reply to James K says:

      This is a good summation of what happened with Nassar, however as Oscar points out, Presumption of Innocence is a legal principle and the bedrock of our justice system. If Sam is making the argument that people need to be more willing to investigate claims against someone, report them, etc then perhaps he should choose better terminology that doesn’t seem to directly challenge the way our legal system was set up to work.

      (And if the legal system is failing, it doesn’t mean it was set up incorrectly, it means it is being run incorrectly – two different things)Report

  13. Avatar Em Carpenter says:

    I know I’ve responded to a few comments on here but I haven’t really given my own take on Sam’s piece as a whole, so here goes:

    In the traditional legal sense of the phrase, the thought of doing away with or weakening the “presumption of innocence” is a non-starter for me. But that’s in a due process, fair trial sense. I understand Sam to mean something else, as he has explained- that law enforcement should not necessarily use that as the starting point, and end up with a benefit of the doubt that is never tested.

    But not starting out with that type of clean slate has its problematic results as well. That particular assumption made by law enforcement is rare, in my experience, and reserved for folks like Nassar- “upstanding” folks “who would never.” More often, cops zero in on a suspect early on and then look for evidence that fits their theory, ignoring that which doesn’t, which is how we end up with unfair or wrongful convictions.

    I don’t know how to fix it except for better trained detectives who can objectively weigh all evidence rather than fitting it into their preconceived bias. Not sure how we get there.

    (I realize in re-reading this that I need to account for a difference between having an unknown suspect then prematurely zeroing in on one, vs. having a complaining witness who tells you exactly who did it. At that point some of that “clean slate” should be marred, but I still wouldn’t want the investigation to stop there, or to then ONLY look for the evidence that fits the narrative.)Report

    • Avatar Jaybird in reply to Em Carpenter says:

      “I’m not using the term as it is commonly understood, I’m talking about something else but using the same term anyway” is rarely as fruitful as we’d like it to be.Report

      • Avatar Sam Wilkinson in reply to Jaybird says:

        @jaybird The presumption of innocence is a specific legal concept (which is occasionally applicable given what we know about the legal system) and a broader cultural one. Those defending men accused of assault often conflate the two, insisting, for example, that somebody like Kavanaugh is owed the presumption of innocence, even though he isn’t on trial. There is no fundamental difference between that assertion in Kavanaugh’s case and the assertion in cases like Nassar’s. In both cases, the idea is to demand that certain folks are to be presumed innocent always, no matter what indicates otherwise.Report

        • Avatar Jaybird in reply to Sam Wilkinson says:

          Best of luck with that.

          I still think that if you want to attack a very particular thing, using a term for that thing that happens to be identical to another thing is a bad idea.

          Hey, out of curiosity, do cultures that don’t have a legal expectation of presumption of innocence have this problem?

          If they do, I think that talking about the presumption of innocence at all is a mistake.

          But I’m far from the only person who has made this point and it doesn’t seem likely to me that you’re going to change your position that you’re not making an easily avoidable mistake.Report

  14. @jaybird Of course they have the same problem, but for specifically the same reason: that presuming men (or, at the very least, some men) innocent is the default conclusion when accusations are made.Report

  15. Here is Bob Corker saying that Kavanaugh is owed the presumption of innocence. It’s always the same.Report

    • “I also very strongly believe that Judge Kavanaugh, like all Americans, deserves the presumption of innocence and that it was equally as important for him to have the opportunity to address the charges and defend himself.”

      The shame! Someone should have told Corker there are different rules because Sam said so…

      It’s striking how many liberals in this thread disagree with the author. That also males me a bit more glad to know those liberals.Report

      • Avatar Stillwater in reply to Mike Dwyer says:

        Well, Corker’s wrong, of course. The threshold for public service, especially as a justice in the country’s highest court, is not and should not be the legal standard applicable in a court of law. Kavanaugh said crazy things today about Dem conspiracies against him and revenge for his role in the Starr investigation of Bill Clinton which will forever taint the court and his role as a justice, should he be confirmed. He ought to be disqualified on those terms alone. But because lots of conservatives (including you!) actually *do* view Ford’s allegations as a Dem conspiracy against him, he gets a pass. He’s just an impartial truth-teller. A principled caller of balls and strikes. He’s expressed no animus against Dems which might inform his future rulings as Justice, but instead made a bold statement of the facts as Red America sees them.

        Also, it’s a bit rich for Corker to claim a presumption of innocence standard when the GOP has gone to great lengths to make sure that that very presumption can’t be overcome by facts and evidence gathered from investigation the claims.Report

        • Avatar Mike Dwyer in reply to Stillwater says:

          I don’t view her allegations as a conspiracy. I view the way they were handled by the Democrats for the last 3 months as the conspiracy.Report

          • Avatar Stillwater in reply to Mike Dwyer says:

            Ahh. And supposing you’re right, punishment for the Dem conspiracy is to confirm a conservative nominee credibly accused of sexual assault? I mean, I don’t understand what the Dem conspiracy has to do with whether Kavanaugh should be confirmed or not.*

            *Unless, like Kavanaugh, you think the allegations are fabricated and part of a grand plan to punish the GOP for losing an election yadayadablahblahblahReport

            • Avatar Mike Dwyer in reply to Stillwater says:

              I think that because of what they did things have been muddled so much that most of us don’t know who to believe. I think that Ford told a compelling story today and assuming she was truthful about being assaulted, I feel very sorry for her. She did not, however, present anything that made me more likely to believe her than I was yesterday.Report

              • Avatar Stillwater in reply to Mike Dwyer says:

                I think that Ford told a compelling story today and assuming she was truthful about being assaulted, I feel very sorry for her.

                “assuming she was truthful”. What does that mean? You saw her tell her story. You don’t have to assume anything.Report

              • Avatar Mike Dwyer in reply to Stillwater says:

                I also saw Kavanaugh tell the exact opposite story. What special ability allows you to confirm one story and ignore the other?Report

              • Avatar Stillwater in reply to Mike Dwyer says:

                Kavanaugh has lied under oath in ’06. He lied when he was introduced by Trump as the nominee. He lied repeatedly during the first round of hearings when asked about his role in the Starr investigation, about stolen Dem emails, about his knowledge of Kozinski’s history of sexual harassment, about contacts with lawyers in Kasowitz’ law firm… Hell, he lied about watching Ford’s testimony today.Report

              • Avatar Stillwater in reply to Stillwater says:

                To put the above in some context, I’m not aware of Gorsuch lying under oath during the hearings prior to his confirmation. I didn’t like his legal views, and I thought he was a smug little prick, but I didn’t think he was, or is, a fundamentally dishonest partisan hack.Report

              • @stillwater Now, now, you can’t be in our comments section trying to use people’s actions against them. You must assume that they are telling the absolute honest truth no matter how many other times they’ve lied, what with how unfair it would be to introduce bring evidence into consideration when discussing anything. That’s called the tu quoque. And you mustn’t ever violate this sacred concept, what with how unbelievably bent of shape some people get about such things.Report

              • Tu quoque doesn’t apply here. Even if someone rejects tu quoque arguments (as I do), this one is in-bounds.Report

              • @will-truman I, of course, agree.Report

              • Avatar Mike Dwyer in reply to Stillwater says:

                None of that means Ford’s story was truthful or accurate.

                And to be clear, I am not making a decision on that because I don’t have the ability to do so. If you feel comfortable speaking with such certainty, well, you know my thoughts on that.Report

              • Avatar Stillwater in reply to Mike Dwyer says:

                She’s not nominated to the SC.Report

              • Avatar DavidTC in reply to Stillwater says:

                He also keeps lying about how ‘other people have issued sworn statements that the party did not happen’. But no one has claimed that. People have written in sworn statements that they do not remember the party, which is different.

                This seems like a minor technical thing until you remember we’re considering him for Justice of the Supreme Court, and he sure as hell better be able to understand the distinction between someone saying under oath ‘I do not remember that happening.’ and saying under oath ‘That did not happen.’.

                Kavanaugh keeps saying things are not true, or at least saying things that cause people to _conclude_ things that are not true.

                For example, as I’ve pointed out here before, he wasn’t even asked_about his role in Pickering’s nomination. He was asked if he knew about Pickering’s unethical behavior. He said no (Which indeed appears true) and then offered the information that Pickering ‘not one of the judicial nominees I was primarily handling.’

                He’s…possibly technically correct in that, but he did a lot of work on Pickering and other lawyers seemed to think he had enough of a role to run Pickering stuff past him. But my point is that a) this wasn’t even asked of him, this was a deliberate ‘step forward and mislead people’, and b) there’s not really any reason that his involvement with Pickering would even be unethical anyway, as long as he didn’t know about Pickering asking lawyers (Including those before his court) to write letters of support for him. And not only did he not, there’s not really any reason he would know about that! A simple ‘I did not know that was going on’ and Kavanaugh is completely off the hook.

                But Kavanaugh is, at this point, _very clearly_ the sort of person who, when presented with even the slightest hint of reproach, will _lie his ass off_. He supported Pickering, cheerlead his nomination as part of the Bush administration, and then Pickering was caught in a scandal and Kavanaugh is like ‘Whoa, I had nothing to do with Pickering at all!’, instead of just saying ‘I worked some on the Pickering nomination, that was literally my job as a lawyer working for the White House.’ or even ‘I personally supported him, so made an error of judgment with regard to his character.’.Report

              • Avatar Stillwater in reply to DavidTC says:

                But Kavanaugh is, at this point, _very clearly_ the sort of person who, when presented with even the slightest hint of reproach, will _lie his ass off_.

                Exactly. I understand why Ford’s testimony is dominating the argument against him right now, but his repeated lying under oath really ought to be sufficient to not only kill his SC nomination but remove him from the DC circuit as well.Report

              • Avatar DavidTC in reply to Stillwater says:

                his repeated lying under oath

                And it’s all the same sort of lying.

                There’s a certain sort of person who thinks they can twist facts to however it suits them by prevaricating. They get asked a question, they answer a slightly different one. Or they can see a question coming up, so they offer a misleading statement in advance. They are constantly twisting the facts to make themselves look better.

                This is what I think Kavanaugh was doing with the ‘not one of the judicial nominees I was primarily handling’ statement. He thought he was going to be asked ‘How much did you work on Pickering?’, so mislead them in advance, and then, sure enough, headed off the question.

                And stuff that can’t be proven, like whether or not he officially ‘knew’ the emails he’d seen were stolen, he feels free to just lie about…no one can prove what he knew in his own head. So he can claim he didn’t see them, and if someone discovers he did, well, he ‘didn’t know’ that those were them.

                This sort of behavior is basically what we expect of politicians. It’s literally the premise of jokes about them.

                It’s _really_ not what we expect of judges. Especially highly-placed Federal judges.

                Kavanaugh is a politician. I don’t mean he has politically-ideological goals, although he clearly does. I mean he’s a politician in that he interacts with the world and others _as_ a politician, where everything is filtered through a lens of ‘What can I say here will make me look better without being later provable as an actual lie?’ instead of ‘What is the actual truth and how do I convey it so people know it?’Report

              • Avatar Mike Dwyer in reply to DavidTC says:

                Perhaps the best policy going forward is that SCOTUS nominees who has served in a political or political-adjacent position previously are disqualified from the bench. I would agree to that.Report

              • Avatar Brent F in reply to Mike Dwyer says:

                As a foreigner, I’m astonished that’s not already the standard in America.

                Its one of the situations where there’s already a real scandal in terms of what people just take for granted.Report

              • Avatar DavidTC in reply to Brent F says:

                As a foreigner, I’m astonished that’s not already the standard in America.

                It was one of those things that was a norm, and not any sort of official rule. And thus the Republicans ignored it.

                For quite some time, in fact. The entire Federalist Society pipeline is a system that is trying to indoctrinate judges in overly political things _without_ it being too obvious. It, and the entire right, has carefully been teaching them how to dodge the political stuff, how to say certain things and not say certain things.

                Everyone has to pretend the Supreme Court justices won’t make political decisions, including people who have _overtly made political promises_ about what sort of Supreme Court justices they would put on the court! For some reason, no Democrat ever turns to the Republican Senator next to them at a hearing and asks ‘Hey, you promised to put judges on the bench that would overturn Roe v. Wade, and he just said it was ‘settled law’, so do you think _this guy_ is going to do that? If not, why are you going to confirm him? If so, then you think he was misleading us?’

                And before anyone says ‘Democrats do that too’….no, actually, Democratic nominees tend to be rather overt about their ‘political philosophy’, which is usually extremely mild if it exists at all. (1)

                Democratic nominees tend to not be actual political operatives, whereas about…half the Republican ones tend to be. And their dissatisfaction with only ‘half’ is the reason the Federalist Society even exists. Republican presidents have accidentally put some non-political operatives on the bench that their side thought were political operatives.

                Kavanaugh is just…not particularly good at not being obvious. He’s an entitled asshole, and he spent a decade as part of the right-wing hate-orgy against the Clintons.

                1) The most common criticism from the right is that the Democratic court nominees ‘aren’t opposed enough to government power’, the sort of nonsensical moral stance that the right pretends it has except when they want to argue the exact opposite and the government should be able to torture people or wiretap without warrants or racially profile people or etc etc…Report

              • Avatar Em Carpenter in reply to Mike Dwyer says:

                I’m good with that. This was my issue with Kavanaugh before I heard all the unseemly allegations.Report

              • Avatar Nevermoor in reply to Mike Dwyer says:

                I would too, depending upon what you mean. I would want to exclude positions like Kavanaugh’s (or, say, someone involved with an impeachment of Trump if things go that way), but I don’t think it would make sense to include someone from a traditionally-qualifying job like the Solicitor General’s office.Report

    • Here’s Mitch McConnell making the exact same claim. No investigation necessary. No followup necessary. He says he’s innocent, so he must be. Just like Nassar said he was.

      It’s amazing what some men are willing to say in service of other men. It’s equally amazing what lengths they’re willing to go to make sure they never know the truth. One wonders how many victims it would have taken for Kavanaugh’s defenders to suspect that Nassar wasn’t being honest. 100? 200? The full 400+?Report

      • Isn’t everyone assuming Ford is telling the truth based on the exact same amount of evidence? Everyone has chosen their sides and the needle didn’t move at all today.

        It’s amazing what some men are willing to say in service of other men.

        Or liberals in service of liberals, Sam in service of his Righteousness, etc, etc.Report

  16. Avatar Sam Wilkinson says:

    Here’s Jeff Flake basing his vote for Kavanaugh on the same theory of culturally presumed innocence. Kavanaugh’s defenders are insisting that is owed this assumption more than an investigation should be undertaken. It is the same defense that used for Nassar, that was used for Catholic Priests, that was used for Scoutmasters, that was used for Jerry Sandusky. Over, and over, and over, the need for men to be presumed innocent trumps all other concerns, including the need to at least investigate the claims.Report

    • Avatar Maribou in reply to Sam Wilkinson says:

      FWIW, it seems that Flake being confronted by two women along the same lines as what you said in your post, has perplexed and complicated his view of the matter since he said what you link to. Not enough to get him to not vote to send it to the floor, but enough for him to want the investigation done.Report

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