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Commentary: Treasure of the West: Recklessness and ignorance has imperiled due process in America
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Commentary: Treasure of the West: Recklessness and ignorance has imperiled due process in America

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In this screengrab from Joebiden.com, Democratic presidential candidate and former U.S. Vice President Joe Biden speaks during a Coronavirus Virtual Town Hall from his home on April 8, 2020 in Wilmington, Delaware.

In this screengrab from Joebiden.com, Democratic presidential candidate and former U.S. Vice President Joe Biden speaks during a Coronavirus Virtual Town Hall from his home on April 8, 2020 in Wilmington, Delaware. (Photo by JoeBiden.com via Getty Images/TNS)

In 1991, President George Herbert Walker Bush nominated Clarence Thomas to serve on the Supreme Court of the United States. It was a politically brilliant and cynical move.

Thomas was, manifestly, only slightly qualified, and in his confirmation hearings showed little interest in learning the job. But four years earlier, President Ronald Reagan had nominated Robert Bork, a supremely qualified scholar and judge, and Bork had been sliced and diced by Democrats on the Judiciary Committee, chaired by Sen. Joe Biden, of Delaware. Bork's views were distorted and grossly misrepresented and he was rhetorically and stylistically outmaneuvered at every turn. Bork was a professor and he came off badly - as arrogant and out of touch. But he was mugged.

This was the beginning of "Borking" nominees for high office and, arguably, of Americans Borking each other - discrediting each other and assassinating each other's character. Today we say this is an entire culture - the cancel culture.

The idea of the Thomas nomination was to inoculate a nominee by playing the race card from the right: Maybe Thomas was a dumbed-down version of Robert Bork. But the Democrats would not dare Bork him because he was an African American.

Alas, these hearings were the dawn of another identity divide - that between men of power and women.

The confirmation process blew up when Anita Hill made charges of sexual harassment against Thomas, her former boss.

And all the familiar things were said: Why did she wait to come forward? There are holes in her story. Why did she continue to associate with Thomas after the alleged offensive remarks? Is she motivated by party politics?

The hearings divided and slimed the nation. Men generally believed Thomas and women generally believed Hill. The whole catastrophe was presided over by ... Joe Biden.

Unlike Bork, Thomas went to the court, where he still serves today.

In 2018, a California professor named Christine Blasey Ford identified herself as the anonymous accuser who claimed Brett Kavanaugh sexually assaulted her at a party when they were both in high school.

This time, belief and disbelief divided sharply along partisan lines. Democrats believed Ford and Republicans (even women) Kavanaugh, usually passionately; often vociferously.

This was so even though the event in question was alleged to have happened roughly 35 years ago. The memories of the two protagonists were shaky. How on earth could any of the rest of us be sure of what occurred?

But we live in a time in which people are often sure of things they do not actually know about and could never truly know about.

Kavanaugh, of course, sits on the court today.

And after this national trauma was born the mantra: "Believe the woman."

The theory was, and is, that when a woman comes forth with an accusation of sexual harassment, abuse or assault, she does so at great peril to her privacy and peace of mind and may, due to the brutality of public life in America today, be victimized a second time. Therefore our collective default should be that we believe the woman when she makes a charge.

That logic has the ring of empathy and equality. But what, then, of due process of law, embedded in our Fifth and 14th Amendments, in English common law, and, one would have said, some years ago anyway, in American concepts of fair play and justice as fairness.

Now we have the accusation against Biden, a longtime public servant, former vice president and candidate for president. It is a charge not of harassment, or attempted assault in high school, or of wandering hands, but of outright sexual assault. It is made by a former member of Biden's Senate staff - Tara Reade.

And, once again, many people who cannot possibly know say they know what happened and what is true.

It chills the soul to consider that the charges could be true. Sexual assault is a horrendous thing to happen to an idealistic young Hill staffer. And it would make "Uncle Joe" a monster.

It is equally gut wrenching if this is a political hit job.

What worse thing could be said of a man?

And the allegation will linger, as a foul smell, forever, as Kavanaugh knows.

I don't know which is worse - that it could be true or that it could be a lie.

Maybe this is worse still: In today's culture one merely needs to say a thing about a fellow citizen to besmirch him. No evidence is necessary. Joe McCarthy laughs last.

This, of course, is the very opposite of due process.

What do we mean by due process? We mean some very specific and historically grounded things, like the presumption of innocence, the right to know the charge, the right to a speedy trial, the right to face the accuser, the right to question witnesses and the right to compel testimony that may exonerate the accused.

But, in America, we also mean the right not to be railroaded; the right not to be subjected to mob justice, the right to fair play.

Our tradition protects the accused, in particular.

It bends over backward for the one who has been named, perhaps falsely, placing the burden on the accuser.

And we are destroying that tradition with our recklessness and ignorance.

When many of these rights were taken from college students by federal education policy, few objected. A young man accused of sexual assault on campus has, until recently, been presumed guilty, under the proscribed interpretation of Title IX.

And Joe Biden, even in the face of an accusation that dishonors him and may cost him the presidency, still thinks that is a good policy.

This is what the former head of the Senate Judiciary Committee says he actually believes.

What an appalling loss of our sense of liberty, which Justice John Marshall Harlan called "a rational continuum, not a series of isolated points."

What an appalling loss of our sense of national pride in something unique - the one great thing that should truly make us proud: due process of law.

It is both idiotic and immoral that we view an accusation like this, against Kavanaugh or Biden, through a partisan prism rather than a fairness prism. This is as stupid as regarding scientific or medical evidence through a partisan prism.

And it is half-baked that some people say the press should "adjudicate" the Biden matter. Who gave the press such God-like power?

It is said that the four great inventions of Chinese culture are the compass, gunpowder, papermaking and printing.

The four great inventions of Western civilization are free speech, religious tolerance, freedom of association and due process of law - all explicitly enshrined in our Constitution.

The greatest of these is due process of law.

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ABOUT THE WRITER

Keith C. Burris is executive editor of the Post-Gazette, and vice president and editorial director of Block Newspapers (kburris@post-gazette.com).

Visit the Pittsburgh Post-Gazette at www.post-gazette.com

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