They Made the Case Against Kavanaugh 11 Years Ago

By | 2018-10-28T10:03:02+00:00 October 27th, 2018|
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With the World Series underway, we think about the Most Valuable Player of each league. We should do that in punditry, too. Aside from the regulars who write for American Greatness, my nominee for MVP (“Most Valuable Pundit”) of the political season is Stuart Taylor, former legal correspondent for the New York Times, author, and commentator on race and sex issues.

His Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, co-authored with UCLA law professor Richard Sander, provides solid evidence of the harm affirmative action preferences may do to ill-prepared minority students at selective universities. (Taylor’s excellent summary of the current state of affirmative action can be found here.) But Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, co-authored with distinguished historian K.C. Johnson in 2007, should hit us between the eyes as a prediction of the horror of Brett Kavanaugh’s confirmation hearings. It is a textbook account of how to stir up a lynch mob against a target—and how such an injustice was not only averted but punished.

Their book shows how corrupt—not just shoddy—the 2006 rape charges against the Duke Lacrosse players really were. Now more than 10 years old, Taylor and Johnson’s exonerating study provides an outline of how to frame campus jocks for rape, defame the innocent for allegedly raping a black female stripper, assemble a mob (including students and professors), and almost succeed. That was what Mike Nifong, the politically ambitious Durham County prosecutor, sought. Nifong was disbarred for his unethical conduct and served a one-day jail sentence in connection with the case. The local and national newspapers—including the New York Times and the Boston Globe— that inflamed the situation are still around, plying their old trade.

Only the fervor of those who believed in the innocence of the accused, some tenacious bloggers (who had access to the facts thanks to North Carolina law), and other intrepid truthseekers turned back the wrath. And even then, many of the accusers and the mob were unapologetic—mobs rarely show shame. Case in point: After Nifong’s demagoguery backfired and his rape charges fell apart, a group of 88 Duke faculty members continued their accusations, declaring in a newspaper ad that, after all, “drunkenness happened.” This totalitarian mentality anticipated how low Democrats would sink in flattering Kavanaugh accuser Christine Blasey Ford and dwelling on language in his high school yearbook.

To fully appreciate the tyrannical treatment of Kavanaugh and explain Democratic complicity in Ford’s charges, anyone devoted to justice for real victims needs to understand the feminist view of rape charges. Taylor and Johnson sum up this mentality in describing “Free Passes for False Accusers,” in which I insert my comments:

Intentionally making a false accusation of criminal conduct against another person is itself a crime, as, of course, is lying under oath. Yet prosecutors almost never go after false rape accusers.

In other words being under oath is meaningless, for practical purposes.

Nor should they do so as in every case in which a rape defendant is found not guilty. The fact that proof of rape beyond a reasonable doubt is lacking does not necessarily establish that the accusation is false.

You think this is a point against Kavanaugh? Read on.

And even accusers who admit that they have lied should usually be given a break lest other accusers be deterred from recanting by fear of punishment.

Exactly the Kavanaugh accusers’ advantage over him—which makes it all the more difficult for Kavanaugh to be “proven innocent,” from President Trump’s congratulatory speech and the title of Taylor’s book.

But when it is clear that he accuser has lied and refuses to recant, the accuser should be prosecuted for trying to ruin and innocent person’s life and to deter others from doing the same.

Justice Kavanaugh can’t sue, Ford has tried to walk away from the mess, and her attorneys have disappeared as well. She could have clarified her case, as Taylor pointed out. But their guns remain loaded. More to the point, outraged voters have an opportunity to out this political scandal. Voters are in an excellent position to punish the Democrats on the Senate Judiciary Committee and those who supported them in ruining an “innocent person’s life and to deter others from doing the same.”

To remedy this fundamental injustice, the logic of which can ruin anyone, not just some prominent judge, citizens have a moral obligation to punish those who acted as partisans rather than follow laws and common decency. In a just world, those opportunists would sink with their party.

Yet the Democrats, though not as loudly now as earlier, proclaim that Justice Kavanaugh has undermined the Supreme Court and the Constitution. No, it is the Democrats’ partisan mob rule that has done this. As constitutional attorneys David Rivkin and Lee Casey point out, contrary to Democrats’ longing, Kavanaugh cannot now be impeached for anything he did before he was a Supreme Court justice, as Article III of the Constitution makes absolutely clear.

One lesson to be drawn from Taylor and Johnson’s account of the Duke horror story is what happened to relevant political figures. Nifong, appointed by a Democratic governor, is disgraced. North Carolina’s then-attorney general, Democrat Roy Cooper, having declined prosecution of the accuser, is now the state’s governor, following a bizarre campaign involving transgender bathrooms, and a close election.

But Cooper did take the unusual step of declaring the accused Duke students innocent—just as President Trump did for now-Justice Kavanaugh. Both did the right thing. Democrats won’t follow Cooper, but Republicans now know what to do. They need to stop learning from repeated experience. The first time should have been sufficient.

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About the Author:

Ken Masugi
Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.