Jonathan Ernst / Reuters

Moral indignation is burgeoning again on the American right. Republican partisans are casting Supreme Court Justice Brett Kavanaugh as a victim of dastardly Democrats so depraved they would forswear the presumption of innocence and gleefully assassinate a man’s character.

Their anger is mostly genuine. Yet at the same time, the story has clearly been an enormous relief for some Never Trumpers. For so long, they were adrift without a tribe. A moral degenerate had taken over their political coalition, despite having inflicted great cruelties on his family, cheated working-class contractors and customers at his sham university, lashed out at Mexicans and Muslims, bragged about groping women without their consent, and sycophantically praised some of Earth’s most brutal dictators. He surrounded himself with corrupt cronies and debased himself with an almost daily stream of petulant, lie-filled public statements.

With the Kavanaugh confirmation, some Never Trumpers finally found themselves earnestly agreeing with their party’s mainstream in a high-intensity fight. What a salve to old friendships. What a fund-raising opportunity for conservative institutions. What an impetus for motivated reasoning.

Republicans weren’t just right about the Kavanaugh fight, some Never Trumpers told themselves: The Democrats were so wrong as to change everything. No longer were Republicans a party captive to a crass reprobate, compromising their values for the power he afforded their coalition. Now they were champions of due process and the wrongly accused.    

The Never Trump conservative Erick Erickson, whose previous forays into questions of judicial character assassination include labeling David Souter “a goat-fucking child molester,” didn’t just cheer Kavanaugh’s confirmation. He used it as an occasion to flirt with outright Donald Trump support.

He wasn’t alone. Take Nathaniel Blake, who declared himself “radicalized” in The Federalist.

“I now support Trump because the Democratic Party and its media allies are controlled by people who view conservatives not as political opponents to be voted down, but as enemies to be personally destroyed,” he declared. “They and their media allies smeared a universally respected judge with an impeccable record as a serial sexual predator on evidence that would not have justified an indictment.”

If one presumes Brett Kavanaugh innocent of the allegations against him—a question-begging assumption in some, but not all, of these accounts—is it once again a feel-good proposition to be a loyal Republican?

I say no.


Although David French of National Review is not wavering in his Never Trump convictions, his account of the Kavanaugh confirmation battle is the best place to begin for the strongest version of the narrative that I contest.

French’s essay in The Atlantic,The Wounds That Won’t Heal,” divided Americans on “matters as deep and profound as human nature, the relationship between men and women, and the fundamental, overlapping identities of wife, husband, father, mother, man, and woman. And the conflict unfolded in the absence of a common moral language and a common moral framework. It took place against increasingly different views of the nature and virtue of American culture itself.”

I offered a sharply contrasting assessment in my own analysis, “The Divide Over Kavanaugh Isn’t as Big as It First Appears,” where I argued that the battle divided strong partisans more than typical Americans, and that most people on different sides of the fight agree about more than they imagine and share similar values despite reaching different conclusions.

For all the details, read our respective pieces. Here I want to contest a more narrow claim: that the right and left are riven by a stark value difference wherein the right is committed to the presumption of innocence and due process for those accused of wrongdoing, while the left with its ascendant ethos of “Believe women” or “Believe survivors” stands for “a flipping of the burden of proof.”

As a civil libertarian, I’ve long been committed to the fair treatment of those accused of wrongdoing and concerned about the imprudence of denying due process. In many ways, the confirmation hearings for a Supreme Court nomination are a poor setting to gauge commitment to those values. It is unlike any other “job interview” in its effect on both the participant and the country, as senators debate whether to confer lifetime power on a nominee. And yet while it’s not a criminal trial, the nominee must answer accusations under penalty of perjury before an audience of tens of millions.

What burden of proof do we apply to accusations raised in that setting? And what process is due?

There are no obvious good answers to these questions, and in choosing among the bad answers, the judgment of many is clouded by partisan or ideological loyalties.

The right is on stronger ground when it points to the most sweeping rhetoric associated with the #MeToo movement and campus sexual-assault hearings to argue that it places a higher value on the presumption of innocence and due process—that the left has not learned the lessons of the Duke lacrosse case, Rolling Stone’s University of Virginia debacle, or the archive of Innocence Project cases where even the protections afforded in criminal trials failed to avert a mistaken guilty verdict.

Of course, such cases divide the left, with its liberal faction arguing against progressives in support of more robust due process. But it is not at all clear that the right, where right-libertarians are pitted against illiberal antagonists, is more supportive of due process or the presumption of innocence. In fact, between two unappealing coalitions, I think Democrats have an overall edge.

And I say that having spent the eight years of the Obama administration complaining almost constantly about insufficient due-process protections.

Let’s begin with the obvious. What French terms “Redworld” may have felt earnestly aggrieved by what it saw as the character assassination of Brett Kavanaugh. But Redworld is not consistently against character assassination.

Redworld is led by a character assassin who falsely declared that Barack Obama was a foreign-born usurper who lied his way to the White House; who stood in arenas chanting “Lock her up” about Hillary Clinton; who tried to tie Ted Cruz’s father to the John F. Kennedy assassination; who disparaged the class of Mexican immigrants as largely rapists; and who just this week presided over a rally where the assembled were chanting “Lock her up” with Dianne Feinstein as their target.

Those citing “what the left did to Kavanaugh” to explain why they’ll now support or keep supporting Trump, of all people, are engaged in highly selective emotional reasoning with incoherent, hypocritical results. Trump is every bit the moral degenerate he ever was on a wide range of matters including the willful dragging of others’ names through the mud. A Republican who declares such behavior to be a dealbreaker ought to be looking for a challenger to support in the GOP’s 2020 primaries.

If Trump wins in 2020, can any Republican credibly deny that he will viciously assassinate more characters? His supporters are inescapably complicit. And that’s to say nothing of the history of irresponsible character assassinations by Redworld entertainers like Rush Limbaugh, Andrew Breitbart, and James O’Keefe.

But let’s stop speaking of Redworld and its entertainers and confine ourselves to the conservative movement’s least demagogic leaders prior to the rise of Trump. Is it any more coherent for that more principled faction to cite the Kavanaugh hearings as a moment of alienation rooted in its commitment to the presumption of innocence and due process, and its moral outrage at transgressions against those core American values?

That has not been my experience. There are principled civil libertarians and their antagonists on the right and left, in both political parties, but here’s what I see when I step back, survey a range of relevant issues, and make educated judgments about who’d be better to advance presumption of innocence and due process (having already granted that Republicans urge more due process on Title IX):  

  • If there are law-enforcement figures at the local level who are depriving people of due process, they are more likely to be defended by Republicans, as happened with Joe Arpaio, and more likely to be reined in by the Democratic approach to the Department of Justice’s Office of Civil Rights.
  • If there’s a major terrorist attack that inspires renewed calls for racial profiling, elected Democrats are more likely to fight against such proposals, while elected and appointed Republicans are more likely to favor the choice that flips the presumption of innocence for some groups.
  • If a president is asserting a lawful ability to imprison people indefinitely without charges or trial, or to torture a suspected terrorist, I expect him or her to have more support on the right than the left, and to be overruled more reliably by Democratic-appointed judges (although I would also expect presidents of both parties to transgress in this way).
  • It is the left that has fought to end stop-and-frisk policies that burdened total innocents, and the right that still defends them, even in New York City, where their end caused no rise in crime.
  • If I were placed on a no-fly list and wanted to challenge my status, I’d rather appear before a judge appointed by a Democrat than a Republican, if that’s the only differentiating factor that I had to go on.
  • Were I falsely accused of a crime and ran out of money to fund my own defense, I would rather a Democratic coalition had set the budget for the public defender’s office.
  • Were I mistakenly arrested by Immigration and Customs Enforcement, I would much prefer to go about the attempt to prove my United States citizenship via the due-process procedures that the median Democrat favors than the ones that the median Republican favors.
  • If wrongly convicted, I would rather go to a progressive district attorney than a conservative one with new evidence suggesting my innocence.

That is hardly an exhaustive survey. But it should suffice to show partisan Republicans who claim to abhor character assassination and to value the presumption of innocence and due process why they are in no position to be righteously indignant about their coalition or to claim clear superiority to Democrats on these issues. Instead, they ought to feel a moral imperative to push their side to do better.

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