Blackstone, Crip Dyke, & The Next Nomination

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.


  1. says

    I was thinking the other day, the supreme court has a quorum of 6. If the more liberal members sat things out, they could basically do a denial of service attack on the system. Unfortunately, they aren’t likely to do that.

    During the French revolution(s) there was a revolt of the judiciary, in which the judges in the crown court simply announced that they were too busy (“gone fishing”) to try any cases. For almost a year. I believe that the situation was resolved when the king imprisoned a few of them in order to give them ample time to think about the constitutional crisis.

    We don’t need a constitutional crisis, we need regime change.

  2. says

    These jerks just do not care about women in general. We are screwed as per usual. I am so disgusted and glad I will be 62 soon and they cannot hurt me but they sure can my family and friends children. Grrrrrrrrrr

  3. sonofrojblake says

    we need regime change

    You’ve had regime change.

    What is “regime change”? Let’s see – it’s when a foreign power looks at your country and decides they don’t like the look of who’s in charge (or who might soon be in charge), and deploys their resources to ensure that they sow enough chaos and discord that “leadership” becomes a memory. Life after regime change generally becomes (more) shitty for the majority, as a relatively small number of extremists who like the new regime feel emboldened because it’s now the people they agree with who are in charge (for the moment).

    The above aptly describes what happened to Afghanistan, to Iraq, and to Libya, among others. It also describes what happened to the United States. How does it feel?

    I think the US is collectively pissed off, not because they’ve been the victim of something they’ve been doing for decades, but that they were such an easy touch. You people spent trillions of dollars of your own money, and the lives of many of your own young people, to effect regime change abroad. When a foreign power decided to fuck you up, all they needed were some laptops. That has to sting.

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