Another “Kavanaugh”

“Brett Kavanaugh’s ordeal resembles the sham trial of Tom Robinson in Harper Lee’s classic novel.”
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WSJ 10/4/2018
By Allysia Finley

If you read Harper Lee’s “To Kill a Mockingbird” in high school, you probably recall it as a parable of racial injustice in the Jim Crow South. It was more than that. The novel chronicles the persecution of an innocent man by a bigoted and bloody-minded town. Amid the left’s crucible of Judge Brett Kavanaugh, Lee’s enduring lessons about due process merit reflection.

The story is set in the sleepy fictional backwater of Maycomb, Ala., in 1935. A black man, Tom Robinson, stands accused by 19year-old Mayella Ewell and her father—lower-class whites who live on relief— of rape, a capital offense. Atticus Finch is Tom’s defense lawyer, and the trial turns into a public spectacle—“a gala occasion”—as all the townspeople flock to the county courthouse.

Mayella alleges that after she asked Tom for help breaking down a dresser in her house, he took advantage of the situation to violate her. Tom claims that Mayella aggressively propositioned him, and he resisted her advances as well as he could without hurting her. In Tom’s account, Mr. Ewell, witnessing his daughter’s lewd behavior from the window, blew his top and shouted at Mayella: “I’ll kill ya.”

“The only thing we’ve got is a black man’s word against the Ewells’,” Atticus notes. “The evidence boils down to you-did—Ididn’t.” But through cross-examination, he is able to poke holes in the Ewells’ testimony.

It is revealed that Mr. Ewell didn’t call the doctor after the purported rape. Mr. Ewell also turns out to be left-handed. Mayella’s injuries were on her right side, suggesting a left-handed assailant. Tom’s left arm is crippled.

When Atticus cross-examines “the fragile-looking” Mayella, she bawls and accuses him of bullying. She then contradicts herself: “No, I don’t recollect if [Tom] hit me. I mean yes I do, he hit me.” Asked for clarification, she replies: “Huh? Yes, he hit— I just don’t remember, I just don’t remember . . . it all happened so quick.”

Apart from the Ewells’ eyewitness accounts, the prosecutor can produce no evidence that Tom raped Mayella. He claims that a prior disorderly- conduct citation is evidence of Tom’s criminality, though people who know him well “say he kept himself clean.” In his testimony, Tom resists calling Mayella a liar. “She’s mistaken in her mind,” he says.

“This case is not a difficult one, it requires no minute sifting of complicated facts, but it does require you to be sure beyond all reasonable doubt as to the guilt of the defendant,” Atticus tells the jury in his closing. The state is relying on hearsay from two unreliable witnesses in “the cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the assumption— the evil assumption—that all Negroes lie, that all Negroes are basically immoral beings, that all Negro men are not to be trusted around our women.”

He concludes: “Thomas Jefferson once said that all men are created equal” but “there is a tendency in this year of grace, 1935, for certain people to use this phrase out of context, to satisfy all conditions. . . . But there is one way in this country in which all men are created equal,” and that is before the law. “Our courts are the great levelers.”

Overcoming the jury’s prejudices proves too great a challenge for Atticus Finch. As the trial judge remarks, “People generally see what they look for, and hear what they listen for.” Mayella’s accusation is deemed credible because she is a white woman. “In the secret courts of men’s hearts Atticus had no case,” Lee writes. “Tom was a dead man the minute Mayella Ewell opened her mouth and screamed.” Lynching was not uncommon in the Jim Crowera South, so Tom was relatively fortunate to receive even an unfair trial and conviction. He is later shot while trying to escape prison. With its unsettling ending, Lee’s tale underscores how the presumption of guilt based on prevailing prejudices threatens American justice.

Despite high praise from people who have known him for decades, liberals presume Judge Kavanaugh guilty on the basis of his race and sex. “Brett Kavanaugh’s indignation was the sound of privileged white male entitlement,” read one newspaper headline.” What difference does it make that after excavating his past for weeks, liberals in the Senate and the media have failed to produce a shred of corroborating evidence of any wrongdoing?

Unlike in Tom’s case, there is no physical evidence that Judge Kavanaugh’s accusers are lying. But Democratic senators assert that a woman’s testimony should not be doubted regardless of its inconsistencies. If they prevail in the absence of additional evidence, Brett Kavanaugh was a dead man the moment Christine Ford opened her mouth.

Ms. Finley is a member of the Journal’s editorial board.

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