Jestin wrote:Can you guys please help me understand?
I'll try my best.
Jestin wrote:Given that we can not prove which is true, #1 or #2, don't we have no choice but to go with #2 until some evidence appears? Or at the very least until an investigation and/or trial is complete?
Yes. The majority of people have been asking for a delay and a full investigation, calling all relevant witnesses to testify and to arm the senators with information gained from an FBI investigation. Very few people are flat out saying that there shouldn't not be an investigation, but simply a no vote.
Jestin wrote:It seems to me that there is no question that the vote should be allowed to move forward, and the senators should be instructed to completely disregard any accusations that have not been proven. Then, if evidence surfaces from an investigation that proves he is guilty, or he's found guilty in a court of law, then he should immediately be removed. Until that day, he should be treated as if he was innocent. It seems to me completely irrelevant if you believe him or her. You or I or these senators shouldn't have the power to make that decision. There's a reason we have an entire legal and court system for these things!
No. This is an easy mistake to make given the general misinformation about the legal process and the prevalence of terms like "due process" and "innocent until proven guilty" in our every day lexicon. Pardon me for refusing to take off my lawyer hat. There is absolutely no protected liberty interest in an elevation to a higher seat on the federal judiciary. There is no protected liberty interest in applying for a job, except in the narrow circumstance that you cannot be discriminated against in the hiring process (and even this is limited, as the 14th Amendment applies to the state and not necessarily to private companies, although most states have by statute barred discrimination in the hiring process and some state constitutions enshrine that as well, but that is a whole different can of worms). As such, there is no due process requirement. Due process comes into play when the government is attempting to burden/limit/restrict/regulate a fundamental right. There is no such right in this case. Put plainly, under our law Judge Kavanaugh is not entitled to any due process in connection with his nomination to the Supreme Court. As an interesting side note, if you wanted to impeach Kavanaugh, then both substantive and procedural due process come into play.
Second, innocent until proven guilty is a standard limited only to criminal law. It is the presumption that the government must prove that a crime has been committed before restraining the accused's liberty. It is a reflection that the government bears the burden of proof and this burden never shifts--this is not true in civil cases, where the burden often shifts after the plaintiff makes out their prima facie case. As mentioned above, Kavanaugh is not having a right revoked or his liberty restrained. Thus, the presumption of innocence is absolutely and completely inapplicable to this. He will, very likely, retain his seat on the DC Circuit.
Edit: Regarding your last sentence...it is quite literally these senators' jobs to vet a nominee. It is their article 1 power, authority, and duty to advise and provide their consent, just as the House may impeach a president and the Senate may convict. Saying that advise and consent should completely ignore credible accusations of sexual assault/attempted rape flies in the face of the Constitution.
Jestin wrote:If he is denied the seat based on these unproven accusations, aren't we going down an incredibly slippery slope here? If we give unproven accusations this much power, aren't we just encouraging more false accusations in the future? From now on, anytime someone is being considered for a public position, can someone just accuse them of something and take away that opportunity?
This is a straw man. Neil Gorsuch was up for a similar seat last year and there was not a single allegation of sexual assault against him. Arguably, that seat should have inflamed more liberals, as it was "stolen" by the GOP from Merrick Garland, who even the GOP said would be the perfect justice. In fact, in only 2 instances have sexual assault allegations been levied at a Supreme Court nominee in modern history (perhaps history at all). In one case, the judge is on the court (Thomas, J.) and the other is the current nominee. If all it took to sink a nomination was to make "false allegations," it is shocking that one was not levied against Gorsuch, Alito, or even Roberts.
Jestin wrote:I run a small startup company with 12 employees, some male and some female. I'm honestly getting more and more nervous about female employees. I could not even remotely imagine a scenario where one of my employees could ever feel like he/she was sexually assaulted/harassed by me. But if this type of stuff keeps happening, I could imagine many scenarios where an employee is let go, holds a grudge, and levels false accusations to get back at me. It's really scary to think that so many years of hard work could go down the drain because of a false accusation. No proof, no validity, nothing - just an accusation - and poof! my reputation is gone, job is gone, and I have to go hide under a rock somewhere.
Benito has a great response to this. To add, you should perhaps consider making sure that you foster an atmosphere where your employees feel comfortable speaking to you about potential allegations against co-workers, or feel that they are safe to tell you that an off-hand joke was offensive to them or made them feel uncomfortable. Document performance reviews well, so that any such allegations are shown to be retaliatory. As an attorney and a former law clerk to an appellate judge, it is incredibly hard to prove sexual harassment or retaliation suits. And as Reyne pointed out, the rate of false allegations is startlingly low given the overwhelmingly negative backlash that almost all survivors face, even when they are right. Look at what happened to Emily Doe from the Stanford case, which ultimately ended in Brock Turner's conviction.