Burden Shifting

The op-eds, social media and MSM are buried under a flurry of commentary about Dr. Christine Ford    charges that he sexually assaulted her.  This seemingly 11^th hour bombshell was, in fact, a carefully planned and orchestrated tactic that was months in the making.   My guess is that organized Democrats went to work on this as soon as Trump made public his list of Supreme Court nominees and that Democrats and their activist allies have been building file folders on each and every one.  And each and every male nominee has thoroughly researched for episodes of potential sexual misconduct.

Ford’s claims, however, have multiple purposes and that’s precisely why liberal Democrats have deployed it as a tactic.

1.    Obviously, the first and most important objective is to delay or derail the Kavanaugh nomination.  Dr. Ford’s initial demand that an FBI investigation is necessary before she will agree to testify.   As we have seen with Mueller, McCabe, Strzok, Page, not only is the FBI subject to political bias, an FBI investigation into a 36 year old incident could take a year.  Democrats only need to hold up the nomination until the November election.  We saw with Patrick Kane of the Chicago Blackhawks, even where the event was contemporaneous and there were witnesses and physical evidence, it took months to clear Kane’s name of a false accusation.  If Democrats could hang this up for 6 more weeks, there is a chance they could flip the Senate and derail his appointment completely.  Whether or not there is anything to her claim, Democrats win if the process stretches out.

2.      Provoke Trump.  Donald Trump has reputation for being impulsive and combative.  Part of the Democratic plan was to provoke Trump into impulsively attacking Ford via Twitter.  That way, Democrats could cry “misogynism” and “sexism” and “toxic masculinity” through the midterms.  So far, they have largely failed at this.  Other than a couple of mild pokes yesterday, Trump has been restrained.

But derailing Kavanaugh, provoking Trump and  solidifying support among women for Democrats in the midterms may not be the most important the Left.

3.      Make what I call the Amherst College standard THE standard for evaluating all cases of sexual misconduct outside criminal proceedings with the long term goal to make it the standard for criminal proceedings as well.   The Amherst College standard (now the standard in many colleges and universities) contains three important elements that depart from our criminal justice system.   It shifts the burden of proof onto the male.   It deprives him of due process.  It redefines sexual assault as any contact that is not expressly and affirmatively consented to.

All of these elements are present here.   Fundamental to our system of justice is notice and opportunity to be heard, and along with that the principle that you get to face your accuser, have them put their case on with an opportunity to defend, and have them cross examined by attorneys.  All of the demands now being made by Ms. Ford subvert these protections of the person being accused.  And of course, Mr. Kavanaugh is being deprived of the benefit of the statute of limitations, which exists because the memory of individuals and availability of evidence fades over time.   Attacking the Kavanaugh nomination with a 36 year old unsubstantiated claim, if successful, will cement the Left’s objective of making the Amherst College Standard, the standard of all sexual misconduct cases, with the long term objective to eventually impound it into the criminal code.   Men will be stripped of due process rights.

The list of demands by Ford’s attorney has been instructive as to exactly where the Left is heading.  They represent the wish list of radical feminists to recast sexual assault claims and shift the burden of proof to the defendant.  She wants Kavanaugh to go first, which is an inversion of criminal procedure.  She does not want lawyers questioning her, for skilled lawyers will know how to pursue a line of questioning and cross-examine her.  She will not testify if Kavanaugh is in the room.  Facing your accuser is a basic precept in criminal law proceedings. 

The Left was enormously successful in shifting the presumption of innocence and stripping basic due process rights from young men on college campuses under the Obama administration  (now being partially reversed by Betsy DeVos).   Ms. Ford and Ms. Katz wish to use this platform to expand the “Amherst Standard” more widely, and eventually to have them apply in the criminal code.

Whether or not it is ultimately successful will depend on the spines of the Senate Judiciary Committee in the coming days.