William Blackstone once wrote:
all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.
The latter part has been deemed The Blackstone Formulation, being a restatement of a principle of law that goes back much further in time than the 1760 date on which Blackstone’s Commentaries on the Laws of England was published. It has reappeared frequently in different times and places, typically reworded slightly but with the numbers rarely changed. What is often lost is that we’re not actually talking here about things like whether a woman should accept a marriage proposal from a man credibly accused of beating the fuck out of his past partners. We’re talking specifically about the criminal law and whether the government is or should be empowered to end or suspend someone’s freedoms, and under what conditions that power can be exercised. The point is to encourage us to think about the consequences of acting under the guise of justice to punish those whose guilt is less than certain.
During the Kavanaugh hearings, I often found myself screaming that the presumption of innocence is not for confirmation hearings. But while the Blackstone formulation helps us understand why we might set a high standard for conviction (beyond reasonable doubt), simply screaming at the internet that the PoI is for criminal trials and not for confirmation hearings doesn’t explain why we should have different standards.
To this end, I want to ask a new question that might help. You can call the this “Crip Dyke’s Question” but the rule being questioned should, I think, clearly be named, “The Lindsey Graham Formulation”:
Is it better to place ten rapists on the Supreme Court than have one innocent man serve his lifetime appointment in honor and privilege on a court of appeal one level below?
Tweet the fuck out of #CripDykesQuestion. Call your senators and ask their staff members this question. Go to debates and use the audience question time (or pre-submission of questions mechanism) to place this question before your senators.
This isn’t too late. This is what we have to do before the next confirmation hearing, and if we want the question to penetrate the public consciousness, we must start now.