By David Paul Henry
Sen. Susan Collins cast a crucial vote to confirm Brett Kavanaugh’s appointment to the Supreme Court. During his Senate confirmation hearing, Kavanaugh faced allegations that he had committed sexual assault. With the outcome of the hearing in the balance, Collins gave a long, thoughtful speech presenting an account of her thorough review of Kavanaugh’s judicial record and reputation, an analysis of the accusations against him, and her reasons for supporting his nomination despite the seriousness of the allegations.
While the Senate hearing was not a trial, the fundamental legal principles of due process, presumption of innocence and fairness, she said, were vitally important. In her analysis, the corroboration of the allegations did not rise to a standard of “more likely than not” and so was insufficient to disqualify Kavanaugh from serving on the Supreme Court, especially in the light of what Collins found to be his otherwise exemplary record.
Collins’ speech did skip over Kavanaugh’s manner of comportment in his response to the allegations during the hearing, behavior not quite in keeping with the evaluation from the American Bar Association quoted by Collins, that “his integrity, judicial temperament, and professional competence met the highest standard.” But her words about presumption of innocence — innocent until proven guilty — were compelling.
“In evaluating any given claim of misconduct, we will be ill-served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy. The presumption of innocence is relevant to the advice and consent function when an accusation departs from a nominee’s otherwise exemplary record. I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward.”
Might Susan Collins direct her passion for presumption of innocence to the plight of immigrants? Right now, government immigration policy is guilty until proven innocent. The President’s own words about Mexican immigrants set the tone: “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” But the President’s continuing rhetoric about immigrants consistently presumes that none are good people, unless perhaps they come from Norway. The President is the inflamer-of-passions in chief. And the administration’s procedures for dealing with immigrants — detaining people in cages, separating families, limiting access to legal aid, delaying hearings, denying due process, frustrating fairness — all build on a foundation of presumption of guilt.
Sen. Collins can be the Republican who stands up on the floor of the Senate and says: Presumption of innocence is not only for the white. Due process is not only for the wealthy. Fairness is not only for the well-connected. Presumption of innocence is for everyone touched by the American system of justice, from Supreme Court nominees to terror suspects detained at Guantanamo. It is for everybody from Hawaii to Lubec, from Puerto Rico to Aroostook County, for everyone around the globe in U.S. military bases and embassies and undisclosed locations.
The present American immigration system is a travesty of American justice. We must give it both legislative and administrative overhaul. We must eradicate presumption of guilt from pronouncements (including tweets) and policy. Susan Collins has the opportunity to be the Margaret Chase Smith of her generation. Will she stand up?
David Paul Henry lives in Lamoine. He has served as a pastor for more than 30 years, has taught theology and ethics and drives a bus.