No one will ever accuse politicians as a group of being a courageous lot, except for the politicians themselves, which is why they’re usually not seen as a particularly honest lot, either. But while Sen. Catherine Cortez Masto’s announcement that she would not vote for Judge Brett Kavanaugh to be a Supreme Court Justice was a shock to exactly nobody, the manner of her announcement was particularly cowardly. In completely ignoring the swirling controversy over the highly problematic 11th hour allegations against the judge, and the crucial debate over due process and fundamental fairness such allegations demand, she has done a disservice to Judge Kavanaugh, his accuser, the legitimacy of the confirmation process, her own credibility as a provider of “advice and consent,” the rule of law and victims of sexual assault. As a former prosecutor, her silence has a particular resonance.

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First, let’s take her reason for opposing the judge at face value. Cortez Masto’s statement indicates that out of more than 300 cases in which Judge Kavanaugh has written an opinion, only one matters. She argued “his challenge of Roe v. Wade as ‘settled law’ during his time as a White House attorney” and “his far-fetched dissent denying a 17-year-old undocumented immigrant in detention from accessing an abortion” disqualify him from the high court.

The problem is that neither of those assertions are true. Kavanaugh did not “challenge Roe v. Wade as settled law.” He rather indicated that not every single legal scholar agrees (which is obviously accurate), and then said himself under oath that Roe is, in fact, “settled.” I get that she doesn’t agree with his judicial philosophy, but what she said about his record in the matter is clearly, verifiably false.

And then there’s his dissent in Garza v. Hargin, which she also misrepresents. First of all, a dissenting opinion cannot “deny” anyone anything – it has no force of law. What she’s referring to is an unpublished court order by a three-judge panel delaying (not denying) by less than two weeks a request for an immediate abortion by a non-citizen child detained prior to illegally entering the country to allow the government time to provide her with a “sponsor” in accordance with federal regulations. The order specifically noted, citing Planned Parenthood v. Casey (one of Roe’s many progeny), that the government could not “unduly burden the minor's right under Supreme Court precedent to an abortion.”

That order was reversed four days later by the entire D.C. Circuit Court, but with language so overly broad that virtually any non-citizen, even outside the country, could assert almost any constitutional right. That should bother everyone concerned with the rule of law or foreign interference with domestic political affairs, but Judge Kavanaugh’s dissent was narrower than that. He merely said that those few days the federal regulation required were not an unconstitutionally undue burden. He even indicated that any further delay would probably require the government to more directly facilitate the abortion! Read it for yourself – a harbinger of a real-world Handmaid’s Tale he is not.

Cortez Masto’s statement in the matter demonstrates one of three things. Either she didn’t actually read Garza, she didn’t comprehend Garza, or she’s lying about Garza. I’ll leave it to you to decide which option is the most disturbing. I’ll say it again – if there were legitimate reasons to oppose Kavanaugh, you wouldn’t have to make stuff up.

Further, no senator can afford to be a single issue voter. Surely one narrow opinion that one then must misconstrue in order to have the impact claimed cannot and should not be the only consideration when it comes to considering a Supreme Court Justice. To ignore every other thing Kavanaugh has said, written, or done – and to ignore the increasingly Kafkaesque circus that has been this confirmation process – is lazy, cowardly, and wrong.

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The funny thing about elephants in rooms is that the more you ignore them, the more obvious they are – and the more ridiculous you look in ignoring the elephant.

At the time I wrote last week’s column, Senator Dianne Feinstein’s secret letter was still absurdly – and suspiciously – ambiguous. Now we know that it was an allegation of an attempted sexual assault from 36 years ago – an allegation that could never be proven in court, and which the FBI has considered and declined to investigate any further. All fair-minded people should be outraged about the nakedly strategic timing involved. Feinstein had been sitting on the letter for months.

Our entire system of justice is predicated on the idea that people may from time to time be falsely accused of a crime, either maliciously or through an innocent but nevertheless faulty memory. And people are, in fact, falsely accused of serious crimes far too often. (There’s a reason Atticus Finch speaks so powerfully to those of us who have ever defended an accused person in court.) In the case of rape, the best estimates put such occurrences at around 5 percent, or one in every 20 accusations. This doesn’t mean we should always assume crime victims are lying or mistaken, but justice demands that we be on guard for the times they are. Accusers should be listened to with seriousness and respect – but so then should the accused.

Over the centuries, we have developed protections for people accused of crimes — protections that in this country we deem as fundamental, unalienable rights that no government entity may deny to any citizen. Those rights include timely notice of the accusation, a presumption of innocence, the burden of proof resting with the accuser, and the ability to confront one’s witnesses in an adversarial proceeding. This is as it should be, and no emotionally driven group – even a large majority of voters – can ever be allowed to dilute those protections if we value our freedoms. Even if a criminal conviction is not at issue, any time a government official shepherds an accusation against anyone (as Senate Democrats are clearly doing), those basic principles of fairness ought to be adhered to as much as possible. When they are not, they cast serious doubt on both the proceedings and the accuser. Accused and accuser alike deserve more respect and decency than this.

Rape and domestic violence – by their very nature – often lack corroborating forensic evidence or independent eyewitnesses, particularly if they are not reported right away, as is often understandably the case. Inevitably, these cases boil down to “he said/she said” credibility conundrums that are gut-wrenching for police and prosecutors. No one wants to get them wrong either way. Every time such cases are carelessly treated as media fodder by political activists of any stripe who, in the end, really only care about their partisan agenda (which explains the partisan double standards regarding such allegations), it makes it that much harder for honest victims to come forward, and more likely they will not be believed.

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Other experienced trial attorneys have written about the serious credibility problems (in an anti-Trump publication no less) with respect to this particular allegation against Kavanaugh. They are obvious to all honest people, including most voters, and need not be belabored here. Still others across the political spectrum have rightly called out Feinstein for her bad-faith efforts which prioritize a political “win” over fundamental fairness or truth-seeking.

Given that virtually every other accusation leveled against the judge so far has been false, and that Democrats have recently used maliciously false allegations of serious felonies as a political ploy, and that Dr. Ford is being advised and counseled by partisan activists, we have even more reason to be skeptical about these latest claims. What’s more, Democrats keep telling us that Kavanaugh is “evil” and Trump is the second coming of Hitler. And who wouldn’t suborn a little perjury to #resist evil Hitler Jr.? Good people have risked far more. (There’s a reason comparing mere political opponents to historical despots is odious, offensive, and counterproductive – it makes people not take you seriously, no matter what your latest allegation.)

Cortez Masto is a former prosecutor and not a dummy, and the fact that she has chosen not to base her “official” decision on the pending allegations is a point in her favor. But it is not nearly enough. By remaining silent, and participating in her own dissembling about Judge Kavanaugh’s record as noted above, she tacitly endorses and excuses the repugnant spectacle going on in the Senate right now. Her silence may lead to injustice for the wrongly accused and honest accuser alike, and invite unfortunate backlash against the righteous core of the #MeToo movement. One cannot simply keep one’s mouth shut in the face of injustice and pretend one isn’t complicit.

We can believe accusers while still adhering to time-honored principles of justice and the rule of law. We can disagree with appointments or legal reasoning without unleashing internet mobs upon those who seek to serve in public office. And we can – and must – insist that our high ranking government officials (particularly former attorneys general who know better) full-throatedly protect and defend those principles and standards.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at [email protected].