Biden, Kavanaugh, and “Due Process”

Robert D Skeels rdsathene
4 min readJun 17, 2020

From a May 9, 2020 Twitter thread

Liberals supporting Joe Biden today, like far-right supporters of arch-reactionary Kavanaugh in 2018, have been throwing around the phrase “due process” as part of their rape apologetics.

Both Biden and Kavanaugh are powerful white males credibly accused of rape. Rather than scrutinize these men for their lecherous conduct, their partisans hide behind the phrase “due process”.

Let’s talk about due process for a second. The US Constitution discusses it in the Fifth and Fourteenth Amendments. The guarantee is that no one shall be “deprived of life, liberty or property without due process of law.”

In short, if the government is going to take away your life, liberty, or property it must operate within the law and afford you fair procedures (e.g. unbiased tribunal, notice, right to present evidence, confront witnesses, etc.).

Generally, life and liberty are at risk in criminal proceedings. Deprivation of property is typically at issue in civil proceedings (e.g. eminent domain, welfare benefit hearings, etc.). However, we’re discussing candidacy for office or for the bench.

As with the misguided notion that a candidate is “presumed innocent” when they aren’t being subjected to a criminal proceeding, calls for “due process” are misplaced when examining credible accusations of misconduct or impropriety aimed at candidates.

Why? First and foremost no one has a “property right” to a political office or a seat on the bench. While wealthy white males like Biden or Kavanaugh believe they are entitled to these positions, they actually don’t have an inherent right to them.

Since they don’t have a “property right” to office or the bench, they’re not being deprived (i.e. by the state) when we listen to their victims. Moreover, there’s no presumption of innocence because their life, liberty, and property are not at stake.

Indeed, scrutinizing candidates for office or the bench is neither a criminal trial, nor a civil action. Rather, it is a determination of moral character. We are trying to determine whether a candidate is fit for office or the bench.

When the Kavanaugh hearings were going on, his reactionary partisans decried the fact that credible, corroborated testimony from Professor Christine Blasey Ford could potentially bar him from the bench.

Likewise, Joe Biden Liberals are now asserting the same complaint in regards to the credible, corroborated testimony from Tara Reade. What neither want to discuss is the standard to which candidates are supposed to be held.

Candidates for office or for the bench MUST AVOID ALL IMPROPRIETY AND EVEN THE APPEARANCE OF IMPROPRIETY. The credible allegations against both men immediately go to the second consideration.

Obviously, if allegations are proven, they reach the first consideration as well. But they don’t need to. Again, this is not a trial, but a DETERMINATION OF MORAL CHARACTER. The burden is on candidates to demonstrate fitness for office or the bench.

Burden is not on the victims, or the public, to prove a candidate unfit. It’s on the candidate to prove that they are fit. Candidates credibly accused of rape, hence an appearance of impropriety, are prima facie unfit for office and the bench.

Here’s the actual standard for federal judges. I had these same arguments in 2018. Unlike craven Liberals, all of my #IBelieveChristineBlaseyFord tweets are still extent.

We don’t owe these powerful men “due process” when scrutinizing them for office or the bench. Instead, they owe us the highest level of openness, honesty, candor, and avoidance of impropriety.

In both these men’s cases, they fall substantially short. Neither are fit. They fail their moral character determinations. For Biden, we can look to even more issues than the credible allegations by Reade.

Biden’s long, well documented history of inappropriate conduct with women and young girls, including the abject incident with Nevada Assemblywoman Lucy Flores is disqualifying.

Biden’s long, well documented history of dishonesty, including his plagiarizing in law school — an act of moral turpitude is disqualifying.

When Liberals deflect by raising “due process” or “presumed innocent” to defend Biden’s conduct, respond by saying “This is not a trial. It’s a determination of moral character, and the burden is on the candidate to demonstrate fitness for office.”

Due process and heightened standards of evidence are afforded in criminal trials and civil actions because life, liberty, or property are at stake. Contrast a determination of moral character to scrutinize whether a candidate is fit for office or the bench, where the burden is on the candidate to demonstrate fitness and they have no inherent right to the position.



Robert D Skeels rdsathene

Social liberation writer, attorney, public education advocate, immigrant rights activist, and law professor. USN ESWS ‘85, UCLA BA ’14, PCL JD ’18 💛🐻💙ゆるゆり 友