From Harvard law professor (emeritus) Alan Dershowitz writing in today’s Wall Street Journal (“This Is No Mere ‘Job Interview’“):
If Judge Kavanaugh is now denied the Supreme Court appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.
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Had Judge Kavanaugh been rejected on ideological or professional grounds before these sordid accusations were leveled, he could go back to his life, as Robert Bork did. But if the Senate fails to confirm him now, his life will never be the same.
Some would argue that if Judge Kavanaugh is now confirmed in the face of these serious accusations, it will have an equally damaging effect on the life, reputation and credibility of his accusers. That is false. Even if he is confirmed, those accusers will be treated as heroes by the many people who believe them. It will not have close to the impact on them that a failure to be confirmed will have on Judge Kavanaugh. The best evidence of that is Anita Hill, who has gone on to a distinguished career as an academic, writer, commentator and feminist. The stakes are simply not comparable.
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This is no longer about who would make the best Supreme Court justice. It is about the most fundamental issues of fairness this country has faced since the McCarthy era, when innocent people were accused of trying to overthrow the government and had their lives ruined based on false accusations, while being denied all semblance of due process or fairness.
We have come a long way since McCarthyism, but we now live in an age that risks a new form of sexual McCarthyism. We must not go to that even darker place. The best way of assuring that we don’t is to accord every person regardless of his status, the kind of fundamental fairness we would expect for ourselves if we were accused.