The Constitution gives the Senate no guidance or limits for their advice and consent role. Senators can vote against a nominee for any seat or office for pretty much any reason. They could oppose someone on his or her merits, of course, but could also reject someone simply because they don’t like the president, or the nominee’s politics, or their skin color, or their religion, or their gender. No hearings are obligatory, no nominee is entitled to the post, and no good faith is required. It is a raw political power of that body, for good or ill, and nothing else.

Unless.

Unless members of that body go from raw politics to reckless, evidence-free allegations. And then you’d better believe any nominee deserves the fair process due to them to defend themselves.

***

It is horrifying to hear the casual dismissal of – or out and out attacks on – some of the most basic principles of due process and fundamental fairness when it comes to allegations of wrongdoing. U.S. senators and social media partisans alike shrug off the presumption of innocence as if it only applies to criminal trials.

Here’s the thing – if you think that people can accuse anyone of anything in any context, no matter how vile, and that unless the person risks jail time it’s up to him or her to prove the accusation false, you’re just factually wrong. (Civil defamation lawsuits are at least as old as ancient Rome.) If you endorse such a view, you’re a terrible human being and probably can’t prove whatever allegation you’re tossing out.

The idea that an accuser must prove the accusation true is a legal principle (in both civil and criminal contexts, by the way), of course. But it is first and foremost a principle of basic fairness and human decency in any context, which is why we have adopted it as a legal principle, as well. We all know the kid from school or the nasty (hopefully former) co-worker who spread malicious gossip around for kicks. Is that the culture we want to adopt as a nation, or in any aspect of our lives? 

The same as true for other fundamental tenets of fairness and justice. Timely and detailed notification of allegations. A chance and the time to defend yourself, and to confront and question your accuser. Over the centuries, we have adopted these standards within our judicial system for all types of disputes, because without adhering to them, we can never be sure of justice. Not ever. And small injustices always, always lead to larger ones in the end.

***

Due process protects both alleged victims and the accused. Of the entire, sad spectacle that was the Kavanaugh hearing, all sides should agree that California Sen. Dianne Feinstein is the greatest villain. If she thought Dr. Christine Blasey Ford’s allegation was credible and disqualifying, she had a duty not to sit on them until it was leaked at a time that would invite maximum skepticism. 

She could have kept the letter confidential while still initiating an investigation and working with other members of the committee. Hell, she could have hired a private investigator instead of a partisan activist lawyer. Her actions were as calculating and sleazy as it gets, and proof she never cared about the truth. All over America, it will now be harder to convince juries to believe sexual assault victims, because Feinstein’s (and others’) tactics will reinforce to many of them that such allegations are merely another cheap tool to attack people you don’t like, regardless of the evidence. (Speaking of evidence and investigations, that, too, is part of a fair process, which is why 11th hour sandbagged allegations, even if true, ring so hollowly, because they purposefully limit the allowable time for them.)

But investigations don’t have unlimited value. Every trial attorney has to manage potential juror expectations about what police investigations can do – real life is not television, where “The Truth” can be revealed if only police will use their magical powers. An investigation of a decades-old allegation would consist almost exclusively of gathering witness statements, which has already been done to every witness with any apparently relevant information about the Kavanaugh allegations, and none of those witnesses support the single remaining accusation that has even a shred of likelihood to it. That kind of investigation was done by Senate investigators, which is why we have the statements we have. The FBI doesn’t have any different tools at this stage than that.

But waste of time or not, better a redundant investigation than the false perception none was done at all. I just hope no one makes the outrageous assertion that investigating Ford’s own credibility, motives, or assertions is somehow out of bounds. And if we value justice, no investigation can be allowed to be endless or open-ended. That’s a tool of oppression and a violation of fundamental notions of fairness just as surely as secret police arresting people in the night.

***

The howling of the mob has nothing to do with a fair process or with who is telling the truth. An individual’s (accuser or accused) public popularity doesn’t, either. Neither does one’s skin color or gender. Another individual’s experience as the victim of a crime, however horrific, is not evidence that another unrelated individual also committed a similar crime – and indulging such a thing only multiplies injustice. Indeed, one of the reasons we have a process is to protect an unpopular person who may nonetheless be innocent.

In my career, I have sat and listened to people convincingly describe horrific crimes that later evidence shows definitively did not happen. In most cases, I think people are remembering honestly, but still incorrectly (memories are not tape recordings), although I have also seen people vehemently perjure themselves in open court. And I have also seen people who don’t seem particularly credible have their claims unequivocally supported by video, DNA, or other hard evidence. It turns out that human beings are particularly bad at recognizing an untruth simply by observing the speaker, and machines aren’t much more reliable.

That’s why I care far more about corroborating evidence (or total lack thereof) than about performance, or tears, or apparent sincerity, and so should all Americans worthy of that name. And it’s why I will always assume anyone is innocent unless the opposite is proved.

***

I put a lot of rapists in prison as a prosecutor, and I’m proud of that. I have successfully defended others against false allegations as a public defender, and I’m proud of that, too. But without a fair process, I could not feel good that justice had been done in any of those cases.

Of all the ways that we’re becoming culturally unmoored from each other, this current one might be the worst. That no process is due to our political enemies. That the ends justify the means, however underhanded or dishonest. It is the difference between the horrors of the French Revolution and the nobility of the American one. The Democrats won the race to the bottom with this round, but such things always escalate, to the sorrow of us all in the end. It is depressing that basic, universal principles are being cast off so readily for short-term partisan gain.

Based on the facts presented (or not) to date, there is no reasonable doubt in my mind that Judge Kavanaugh is innocent of the accusations against him. (If he were not, I would not want him to serve.) And because of that, I believe his confirmation – as a symbol that we care about the principles underlying due process and fundamental decency and fairness – is critical to the health of our civil society and of the Republic itself.

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].