Column: When out on a limb, be careful where to cut

Column: When out on a limb, be careful where to cut

John Donald O'Shea

John Donald O'Shea is a retired circuit court judge and a columnist for The Dispatch-Argus.

What would you call a man who climbs high up into an oak tree, crawls out to the end of a long branch 35 feet above the ground, and proceeds to cut through the branch which really needs to be cut off — between himself and the trunk?

Do you see a problem? A possible "unintended consequence?"

What do you call a man so intent on fixing an immediate problem that he never considers a significant "unintended consequence?"

In Congress, we call these people Democrats.

Do you think, my characterization is unfair? Let me give you just two conclusive examples that Democrats rush in to fix dire problems while giving no consideration to equally or more dire consequences.

Remember Senator Harry Reid? He was the Democratic majority leader in the U.S. Senate. The Republicans, for partisan political purposes, were blocking President Obama's judicial nominations. So Reid got a brilliant idea. Get rid of the Senate rule requiring a super-majority of 60 votes before a nomination could be considered.

Harry Reid fashioned a rule that allowed for consideration of judicial nominations upon a simple majority vote (51). Obama got his district and appellate judges. But what was the unintended consequence?

President Trump and the Republican Senate have now used "Harry's Rule" to put Justices Neil Gorsuch and Brett Kavanaugh on the Supreme Court. In addition, the Republicans have now placed 51 new appellate judges on the bench (51 of 179). The once liberal 9th Circuit Court of Appeals is changing. Ten of the 29 judges on that bench are now Trump's appointees (with a lot of help from Mitch McConnell, the Republican Senate Majority Leader).

Which brings us to the second example.

In an all-out effort to keep Kavanaugh off the Supreme Court, the Democrats trotted out a number of women who accused the judge of sexual misconduct. Only one accusation against the judge had even a scent of credibility.

Democrats immediately "climbed the oak," crawled to limb's end and began sawing.

"The woman must be believed."

"The man cannot deny his way out of the accusation."

"A woman would never falsely claim she was sexually assaulted."

"The accused is presumed guilty."

"The man must prove his innocence!"

The tactic wasn't new. It had first been employed when Judge Clarence Thomas was nominated to the Supreme Court. But Republicans, slow on the uptake, made no use of any similar tactic when Judges Elena Kagan and Sonia Sotomayor were nominated by Obama to the Supreme Court.

But then when Kavanaugh was appointed by Trump, Democrats reverted to their playbook.

"A woman would never lie about being sexually assaulted."

"The denial of a man accused of sexual assault can't be believed."


The notion that a man must be presumed guilty because a woman has made an accusation is worse than stupid. It is unconstitutional and un-American. The Supreme Court long ago held that the presumption of innocence is a fundamental feature of American due process. The same for requiring the accuser to prove his case beyond a reasonable doubt (or at least some proof)!

The Democrats who spouted these insipidities voiced them because they saw an opportunity to fix an immediate problem — keep a conservative off the Supreme Court.

Now, they have an unanticipated problem. Their presidential candidate, Joe Biden, has become the target of Tara Reade's sexual misconduct allegations.

Tara Reade is a woman. Must she be believed simply because she's a woman?

That was the Democrat's rule when Christine Blasey Ford accused Kavanaugh.

"No woman would ever lie about being sexually assaulted."

Is it still the rule?

Democrats said Kavanaugh's word wasn't sufficient to clear him. Is that still the rule in Biden's case?

Democrats said the "presumption of innocence" had no application when a man was seeking appointment to the nation's highest court. How about when he seeks election to the nation's highest office?

Democrats said, "the defendant had the burden of proof" in a judicial confirmation hearing. How about in an election on the candidate's fitness to be president?

There is no double-standard when Republicans and Democrats simply disagree. But there is a lamentable double standard when Democrats apply one set of rules to Republican candidates and then repudiate their own rules when a Democrat becomes the target.

Democrats climbed the tree, crawled to branch-end and cut in order to sink a Republican nomination without thought of the long-term consequences.

Let's hope the Republicans don't adopt the Democrats' shameful double standard. Even an inveterate flip-flopper like Joe Biden deserves due process and to have his accuser prove his guilt.

John Donald O'Shea is a retired circuit court judge and a columnist for The Dispatch-Argus.


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