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Posts published in October 2018



With the recent Judge Kavanaugh debacle in the US Senate it’s worth reflecting on this process here in Idaho.

The Idaho Senate confirms many gubernatorial appointments as required by law. Some appointments and the boards they serve on have statutory (legal) requirements. Appointees come before an assigned committee and are interviewed. Then the appointment is carried by a Senator to the floor of the Idaho Senate for confirmation.

The legal requirements for serving on a Boards or Commission, or as Director of a department usually had to do with qualifying experience, but often, in statute the makeup of the board was required to have a partisan balance. Statute might read “no more than two members may be of the same party”. That’s what the statute for the Board of Corrections says. Is this legal requirement for partisan balance important? You bet it is.

Without it, cronyism would be more rampant than it is. More, it could affect your vote for Superintendent of Public Instruction.
Cindy Wilson has been active in Idaho government well beyond her classroom work as a teacher. She is a strong leader and a powerful voice. So, I can’t figure out why she got appointed to the Board of Corrections unless Brad Little stood up for her.

Governor Otter has used these appointments as a partisan tool. Brad advocates for good people. But he keeps a political eye on the landscape. Some Fish and Game Commissioners have gone on to the legislature. Some appointments are rewards to moderate Republicans beat by Tea Party republicans. If the statute requires it, they become “unaffiliated”. Butch knows how to stack the deck. Brad has a better eye for the common good.

What better place to see the need for improvement in our public schools than in our prisons? As a Joint Finance and Appropriations Committee member, I toured many Idaho prisons. Not to mention I worked there as a physician. On one tour we observed a classroom working on personal accountability. As we started to leave our Chairman (Dean Cameron) asked the class how many had graduated from high school. He did it politely, with a purpose. One hand of the thirty inmates went up. As we went out to the bus I stood next to him and complemented him for the question.

Legislators need to know these things. “Were you pushing for funding pre-K education?” I asked. He rolled his eyes. He wanted his committee members to make the connections; I might have taken that a bit too far.

Cindy Wilson served on the Governor’s Task Force after the Luna Laws got shot down. Now she serves on the Board of Corrections. Connecting the dots on how our citizens thrive may seem simple to some. A local candidate suggests “getting rid of the dead beats”. Does he mean a deep trench and a firing squad?

I believe Cindy Wilson has watched classroom performance, has watched our corrections system struggle and now balloon, and understands the connection. But if Butch Otter (or Brad Little) wanted to make Idaho safe from Democrats, he never would have offered her for such a position. He did. Thanks Butch (or Brad).

To exhale


Ever since election night 2016, I’ve been holding my breath. The Russian propelled election of Donald Trump to the presidency was, for many, a traumatic event. Every day since that terrible night, we have seen ever deepening shadows of oligarchy, tyranny, and torture.

As the litany of horrible words and deeds has spilled forth from Mr. Trump and his sycophantic entourage, I have feared for our country, for the future of our representative democracy, for the rule of law.

Long before he took the oath of office, Mr. Trump sought to exploit our differences and divide Americans, to turn us into a nation of bitter rivals who talk past each other, excoriate each other, and see governing as a zero sum game.

If there had been the slightest hope that a President Trump would exceed expectations and become a statesman after the election, that hope was extinguished on Inauguration Day when Trump gave his “American Carnage” speech. His presidency, like his candidacy, would be that of a demagogue. He would play, relentlessly and unashamedly, to his base.

And if there was ever a ray of hope that members of his own party, the majority in both houses of Congress, would stand up to Trump’s recklessness, that ray was likewise extinguished when it became clear that McConnell and Ryan and their respective caucuses would turn a blind eye and a deaf ear to any wrongdoing. They transcended mere enablement; they became Trump’s confederates.

Over the last two years, the resistance has grown – the Women’s March, the rise of Indivisible Groups, the special elections that saw Connor Lamb win a seat in Congress and Doug Jones elected to the Senate from Alabama, the many triumphs in local elections held in cities and towns across the country, and the abundance of new leaders rising to the occasion, running for office and speaking truth to power.

But through it all I’ve held my breath. It hasn’t felt safe to exhale because the House and Senate committees on Intelligence have concealed the truth about the Trump-Russia labyrinth, because the senate Democrats have been helpless to stop the Federalist Society’s hostile takeover of the judiciary, and because our president has routinely offended our allies and catered to our enemies, often expressing his desire to emulate them.

Now, a little over three weeks out from the mid-term election, I dare to hope that I can exhale, that our nation will reject Trumpism and its cruel treatment of immigrant children, of the elderly and disabled, of Gold Star mothers and prisoners of war, of those poisoned by lead in their drinking water and others decimated by hurricanes.

I dare to hope that our nation will, in the words of our sixteenth president, be touched again “by the better angels of our nature,” that a government “of, by and for the people,” will not perish from this earth.

So I will vote and continue to volunteer and contribute. I will lend my voice to the resistance and persist in speaking my truth. We cannot endure two more years of unchecked tyranny. Until the polls close on November 6, I will not relax. I cannot exhale.

An unbearable hothouse


Earth’s future generations will undoubtedly spend a good deal of their time cursing us for condemning them to an unbearably hot planet. They will be confounded by our utter disregard of the present scientific consensus that Earth is headed for a global warming disaster. They will wonder how we could have been so selfish that we would not have taken reasonable action to cut down on greenhouse gas emissions.

The Intergovernmental Panel on Climate Change just issued an urgent warning that the world has a window of just 10 years to reduce carbon emissions enough to avert widespread environmental damages long into the future. We have already seen warning signs all around us--historically destructive wildfires, repeated record storm surges and downpours of rain that have been fueled by warming ocean waters, record-breaking global temperatures, and northward-creeping warm-climate plants, animals and diseases. And, we ain’t seen nothin’ yet.

If we wait to take action until much of Florida and many east and west coast cities have disappeared under ocean waves, it will be too late. Pentagon planners project that by then there will be chronic droughts and crop failures over wide areas of the world. That will result in large population movements and desperate struggles over resources, leading to unprecedented armed conflict and unfathomable numbers of deaths.

This may all sound alarmist but it is time for people to get alarmed and activated. The Trump administration is well aware that human activity, such as burning of fossil fuels in smokestacks and cars, is largely responsible for the crisis. A recent administration report projects a disastrous 7 degree increase in global temperature by the end of the century.

Despite the fact that such an increase would make some areas of the world uninhabitable, the administration proposes to let more greenhouse gases belch into the air. Those gases not only cause the Earth to get hotter, but they kill an estimated 80,000 Americans each year from respiratory illness.

The administration has been cutting back numerous programs to reduce dangerous emissions. We should be taking dramatic action in the other direction to protect the very lives of our children and grandchildren.

Can greenhouse gases hurt humankind? Climate scientists believe that massive greenhouse emissions, somewhat comparable to the almost 40 billion tons we presently spew into the air each year, resulted in a number of mass extinction events in Earth’s past. Those were the result of unimaginably huge volcanic activity.

Geologic and fossil evidence indicates that volcanoes erupting over a wide area of what is now Siberia threw gigantic amounts of greenhouse gas into the atmosphere. The overheated air killed over 90 percent of life in the oceans and 75 percent on land in what is called the “Great Dying” at the end of Earth’s Permian period about 250 million years ago. Additional extinction events are suspected to have resulted from natural greenhouse concentrations in years since.

We can’t control natural greenhouse gas emissions but we have the knowhow to control and reduce human-caused emissions. We just need the brains and resolve to keep our planet safe for human habitation. If we refuse to do so, there is a possible bright spot. The fossil record suggests that if we allow another extinction event to occur, the Earth will return to a habitable state in about 5-10 million years afterward.

Jim Jones’ past columns can be found at

A Trump positive


Never thought the day would come - at least in this lifetime - I’d give Donald Trump credit for anything positive. Just seemed absolutely impossible. But, while that “credit” is awfully tangential, it’s his nonetheless.

Hold that thought. A bit of background is required.

The Governor of Connecticut has signed into law legislation allowing that state to join the National Popular Vote Interstate Compact (NPVIC). A mouthful, to be sure. But, it’s important.

NPVIC was formed several years ago to make an end run around existing federal law in the way the Electoral College works. Presently, each state has the same number of College votes as it does members of Congress. Idaho, for example, has four - two Representatives and two Senators. Oregon has seven; Washington 12, California 55, Texas 38 and so on.

Currently, if a presidential candidate amasses an Electoral College vote total 270 in several large states, the popular vote winner could lose. In reality, we’d have a minority president. Trump-Clinton. Bush-Gore.

What the Compact represents is states changing their own laws so the popular vote winner is the real winner in future presidential elections. If the Compact can reach the 270 vote total - the same Electoral College number a presidential candidate has to get to win now - future races would go to the popular vote victor. Minus considerable legal challenges to that end run.

With the addition of Connecticut, the Compact currently has 172 electoral votes coming from California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, Washington and D.C.. So, the hunt is on for a total of 98 more. A few “biggies” like Ohio (18), Texas (38), Michigan (16) and Florida (29) could put things “over-the-top.”

While there many folk - corporate and political - who don’t want to change - and many reasons (or excuses) for not doing so - the one indisputable argument on the table is simple: all other elections - for anything - are decided by the majority of the most votes cast. Period. The presidency is the only contest - from dog catcher to Congress - in which the majority can - as we’ve seen recently - lose the race.

“What’s that got to do with giving credit to Trump,” you ask?

Since the 2016 election, according to Connecticut Governor Dan Malloy, more states are asking for information about the Compact and more research is being done on how to draft legislation.

As Connecticut State Rep. Mathew Lesser put it in debate, “The Trump victory appears to have given the issue some added momentum.”

Thanks, Donny! You’ve been a big help.

Idaho Weekly Briefing – October 15

This is a summary of a few items in the Idaho Weekly Briefing for October 15. Would you like to know more? Send us a note at

We're at work trying to make the Briefing a free-access publication through contributions. See our donation site at IndieGogo.

Still more debates were held last week between candidates for state office as the general election reaches its final phase. Wildfires continue active around the state even as winter firmly arrive in parts of eastern Idaho (though weather toward the west is distinctly autumnal).

The United States Senate this evening voted to confirm Ryan Nelson of Idaho Falls to serve as a judge on the Ninth Circuit Court of Appeals.

Final 2019 premium rates for individual and small group health insurance plans have been released by the Idaho Department of Insurance.

Idaho Fish and Game recently reached an agreement with the U.S. Fish and Wildlife Service to assume operations of the Hagerman National Fish Hatchery, which raises about 1.6 million juvenile steelhead for release in the Upper Salmon River Basin.

Idaho conservation groups issued a harsh rebuke to Gov. C.L. “Butch” Otter today after the governor committed the state to four more years of support for failed federal salmon policies.

The Micron Foundation announced a $1 million grant for universities and nonprofit organizations to conduct research into how artificial intelligence (AI) can improve lives while ensuring safety, security and privacy.

Governor C.L. “Butch”Otter announced the appointment of retired Fish and Game employee Don Hancock Beck Jr. to fill a vacancy on the Nez Perce County Commission created by the recent resignation of Commissioner Bob Tippet.

Jeanne Higgins, Forest Supervisor for the Idaho Panhandle National Forests, is pleased to announce she has signed the decision memo for the Hanna Flats Good Neighbor Authority Project on the Priest Lake Ranger District of the Idaho Panhandle National Forests.

Senators Jim Risch and Mike Crapo voted in favor of the America’s Water Infrastructure Act. Among many important upgrades to our waterways, irrigation systems and dams, the bill will help ensure water delivery to Idaho ranches and farms, and will increase water storage in the West. It also removes unnecessary red tape, making billions of dollars in deauthorizations to help reduce the deficit. The President is expected to sign the bill into law.

Christians and other faith leaders launched a week of prayer and action in support of Proposition 2, the Medicaid expansion ballot intuitive.

IMAGE Downtown Moscow was packed with crowds as the city’s popular farmers market attracted people from around the region. (photo/Randy Stapilus)

When Idaho Democrats win


This year’s race for Idaho Superintendent of Public Instruction will test one of my long held theories about the state’s politics. It will be news to some voters, but Democrats have occasionally won elections in Idaho, but generally only when Republicans screw up and put forward a candidate broadly seen as unfit or ill prepared. When that happens a competent Democrat can win and often stay in office for a while.

Frank Church won the first of his four terms in the Senate in 1956 because he faced a flawed GOP incumbent, Herman Welker, who had distinguished himself as Joe McCarthy’s best friend in the Senate. Welker was likely also suffering from a brain tumor, which may have contributed to an erratic personality that offended many voters, including Republicans. Unacceptable GOP candidate equals Democratic win.

Cecil Andrus used to joke that had there not been a Don Samuelson, another bumbling GOP incumbent, he would never have won the first of his four terms as governor. Democrat John Evans beat the hapless Republican gubernatorial candidate Allen Larsen in 1978 only after Larsen, an awful candidate, told live-and-let-live Idahoans that he thought it was possible to legislate morality. That’s why you don’t remember Governor Larsen. Richard Stallings was elected to Congress because the GOP incumbent George Hansen was a serial crook. One judge, obviously giving Big George the benefit of the doubt, said Hansen’s failure to comply with campaign finance law was not necessarily “evil” but “stupid, surely.” Hansen later served time for defrauding a bank.

Which brings us to Cindy Wilson, the earnest, experienced, energetic and personable Democratic candidate for state superintendent of public instruction. Wilson, based on her resume and grasp of issues, should, even in red Idaho, be a serious candidate. She’s taught for 33 years in schools in Orofino, Pierce, Shelley, Boise and Meridian. She’s won awards for her classroom success and Governor Butch Otter appointed her to the state board of corrections, giving Wilson a view of how educational failure contributes to exploding prison populations. That Wilson has a chance to win, however, says as much about the underwhelming incumbent as it does about the challenger.

Republican incumbent Sherri Ybarra is, as one astute observer told me, really “an accidental candidate.” Ybarra, a total political unknown with a shallow resume, came from nowhere to win the GOP nomination four years ago. That was enough for a Republican “fresh face” to win a general election. Since then Ybarra’s often erratic performance has raised persistent questions about her competence and even her interest in the job.

For a politician who is supposed to be an advocate for Idaho’s 300,000 public school students, Ybarra frequently seems to have forgotten to do her homework. Ybarra has been late with her campaign finance reports and has never fully explained why she had to amend disclosure reports going back to 2017 to justify why she paid herself back for a loan to her campaign that she had never disclosed as a loan in the first place.

Ybarra has stressed support for rural schools, but her policy proposals have been thin to the point of non-existence. Gubernatorial candidate Brad Little, by contrast, recently put some specific meat on the bones of how rural districts might actually combine certain services. It is the kind of thing a chief school officer might do rather than a candidate for governor.

Ybarra has touted a school safety initiative – KISS, Keep Idaho Students Safe – but did nothing to coordinate her very expensive proposal with the office state lawmakers specifically established to deal with that issue. As Idaho Education News reported recently the head of the Idaho Office of School Safety and Security was dumbfounded to learn that Ybarra had gone off on her own, ignoring the expertise in his office. “We didn’t even know she was looking at doing any kind of safety initiative until she announced it to the general public,” said school safety program manager Brian Armes.

Challenger Wilson might have simplified her entire campaign by adopting an easily understood slogan: “I’ll show up for work.” Ybarra has frequently missed state board of education meetings, including a meeting this summer that conflicted with her professed need to pack for a vacation. Lately she has been stiffing joint appearances with Wilson, including in the last few days an Idaho Falls City Club event and an educational forum at Boise State University.

Ybarra ducked the Idaho Falls appearance in favor of a fundraiser at a pub in Eagle owned by a former colleague who lost his educational credentials after being accused of multiple counts of sexual harassment. “He was punished for that, and he’s still a friend of mine,” Ybarra told reporter Clark Corbin of Idaho Education News. “We’re not around kids right now, we’re at a fundraiser.” That statement will be remembered as the definition of tone deaf, or perhaps worse.

The last time Idaho had a bumbler in the state superintendent’s office voters overwhelmingly rejected his “education reforms” at the ballot box. And before that an incompetent Republican state superintendent lost re-election to Democrat Marilyn Howard, who went on to serve two terms, carrying on a tradition of professional, competent management of the office that dates back to Jerry Evans and Roy Truby in the 1970s and 1980s.

Having the big R behind your name is often all it takes to win in Idaho, but if voters are paying attention and really want competence in a job critical to kids and parents and the economy, the incumbent state superintendent will be looking for a new job in January.

To write them in


Until this month,when she was briefly a national figure for her party-line-breaking vote on a Supreme Court nomination, Alaska Senator Lisa Murkowski merited political attention for an entirely different kind of reason.

She is one of the few people in recent generations at least to win high office in this country through a write-in campaign. She did that in 2010, as a first-term senator who lost her party’s primary but came back to win the general election as a write-in. (In 2016 the Republican Party did renominate her for a third term, which she won.)

That was so remarkable because it’s hardly ever accomplished, for high office or lower. (Strom Thurmond in 1954 was the only other occasion of such a win for a Senate seat.) Ordinarily, when you hear about contenders trying to win through write-in, without the advantage of a visible spot on the ballot, you’re best off to, let’s say, minimize their chances.

Many non-incumbent candidates will tell you how hard it can be to become reasonably well known around the electorate even with a ballot spot to help out. Invisibility there makes it a lot harder.

Still, that’s not to say they have no chance at all. And at least one legislative contest in Idaho might put that to the test.

In all, six candidates have filed in Idaho to run as write-ins. Two are for major offices: Michael Rath of Saint Maries for the first district U.S. representative and Lisa Marie of Boise for governor. There’s a state House candidate in District 23 (a district based in Elmore County), Tony Ullrich from Hammett.

Two of the write-ins are better known, and in fact were on the ballot only a few months ago. Peter Rickards of Twin Falls ran this year for the Democratic nomination for the second district U.S. House seat; now he’s running for state Senate against an otherwise unopposed Republican incumbent. Rickards’ odds are not good, but his experience of many years as a candidate may add some interest to the race.

The most interesting situation is in District 32, in the rural southeast corner of the state. In May long-time Representative Tom Loertscher, a Republican, lost his party’s nomination in an upset to Chad Christensen of Idaho Falls. Loertscher has been a mainstay of legislative politics in that area since his first election to the House in 1986 (and he was a Bonneville County commissioner before that). Now he’s trying to do exactly what Lisa Murkowski did in 2010, return as a write-in by defeating his own party’s nominee.

In some ways Loertscher fits the profile of the kind of candidate who might be able to pull it off. He’s deeply experienced and connected in the area, is familiar to a lot of people there and for that reason he might be more advantaged running in a general election than in a primary.

Running as a write-in is nonetheless tough, and Loertscher has an added burden in this case: A sixth write-in contender also has filed in that same district. That candidate, Ralph Mossman of Driggs, seems to be drawing more support from the Democratic side (his web site lists support from the Idaho Education Association and former Democratic Representative Richard Stallings, for example). But he, like Loertscher, is listed as an independent write-in, so the fallout is far from clear.

Hard campaigning work will be central here. The numbers generated on election day should be fascinating.

A personal disclosure is needed here. My wife is running for city council in our small town, one of three candidates for three open seats. There’s no declared opposition, not even on the write-in level, as yet. That means her odds of winning next month are pretty good.

But she’s campaigning anyway. After all, you can never take those write-ins for granted ...

Madame lieutenant governor


For the life of me, I can’t figure why someone would work their tail off for nine months to get a part-time umpire job that makes you live in Boise.

Because, besides the rare occurrence of filling in for the governor, the Lieutenant Governor has the thankless job of umpiring the Idaho Senate when it’s in session January to maybe April. And that’s about it. Take my word for it, it’s not glamorous, powerful, or fulfilling.

It can’t be the money: an annual salary of $37,000 with benefits would mean you couldn’t afford to buy a house in the booming Boise real estate market. It has been a boon to the Idaho taxpayers that Brad Little, our current excellent Lieutenant Governor, lived in Emmett, close enough that all he had to invest in Boise real estate was a modest condo.

It can’t be the power. If slamming the gavel down on misbehaving Senators brings a warm feeling to your heart, maybe a little smile to your countenance, that will fade if you’re doing your job right. No good umpire enjoys calling a strike more than a ball. No, there’s only one reason besides a pure sense of public service that one might fight and work so hard for such a thankless job. It might just be what the job has become in this one-party state: a spring board to higher partisan office.

Our 34th lieutenant governor, Phil Batt made this a reality, but only because he saw the need to revive the Idaho Republican Party back in 1984. Idaho had suffered under Democrats in the executive offices for 30 years then. He did a great job of it too; Idaho has been dominated by Republicans now for thirty years, thanks in part to his efforts.

Since Phil, the part-time office has served as a farm team job for Idaho Republicans: Butch Otter (36th Lt. Gov.) went on to serve Idaho in congress, then 12 years as Governor. Jim Risch (38th and 40th) took a swan dive off the spring board into the US Senate. And David Leroy (35th) sat in the office while looking around for any available opening (congress twice, governor twice). And we are about to elect a reluctant Lieutenant Governor (Brad Little, 41st) to our states highest office. It’s like Brad got caught on the assembly line Phil created.

When partisan politics is the game you play, constitutional office is just a position on the field, or even on the bench. Lieutenant Governor in Idaho is now the back-up quarterback position for the party in power. Our founders knew politics could be a profession for those so inclined, and such an inclination does not serve the public good. The office was constitutionally kept so nominal in an effort to discourage its use as such. But our founders probably didn’t imagine how partisan politics could be amplified by Facebook or Russian troll bots.

Does any of this tell you who might best serve us in this position? Do you want to elect a good umpire or a back-up quarterback? Do you want your vote to serve the public good, or your partisan persuasion? I’m voting for Kristin Collum. Not because she’s a veteran, or a woman, or a Democrat. She’d be a good umpire. I’m not looking for a back-up quarterback.

On presuming innocence


Trump thunders that the Democrats want to do away with the presumption of innocence and will be responsible when mothers and wives see their sons and husbands trashed by false accusations. Senator Collins claimed that Judge Kavanaugh was entitled to the presumption of innocence in the face of what she admitted was credible testimony from his accuser. Senator Durbin has been taken to task for his remarks that the presumption of innocence does not apply to this case.

The arguments abound that it is all a plot by the Democrats to take away a time-honored tradition of our American heritage, and that without it, one’s reputation could be trashed anytime a baseless accusation was made.

The Republicans have made a complete mish-mash of the argument, and they should all know better. Recent discussions indicate that there is considerable confusion over exactly what the presumption is and how it operates. Let us take a look at this subject under some bright lights.

Most of us understand the concept of evidence, and the concept that if one claims something is so, they must produce evidence of the claim in order to have it established and accepted as true. But what happens if there is no evidence? Under what circumstances can we get to a conclusion where we have to accept the existence of a set of facts without proof. How do we handle this?

The answer is with assumptions. In our every day lives, we assume all sorts of things just to get through the day. We assume the clock is accurate, we assume the bus will arrive on time, we assume the phones will work, we assume it is not going to snow in June. Our lives would fall apart if we had to have proof of all these propositions before taking any action.

A presumption is nothing but a formal assumption. In the law, we formalize this reality into certain rules of evidence and recognize presumptions all over the place. The presumption that property acquired during marriage is community property, the presumption of heirship of a birth during coverture, the presumption of due care, and so forth. These presumptions are not evidence. They stand in as substitutes for evidence when it is necessary to get to a conclusion that turns on some point where there is not actual evidence. Presumptions serve to enable us to accept as true the fact in question despite having no actual knowledge of it, and despite there being no actual evidence on point, in order to complete a legal process or reach a legal conclusion.

In the law, any presumption evaporates in the presence of actual evidence. The presumption becomes unnecessary and unwarranted, for if there is actual evidence on point, the truth of the proposition is to be determined by the actual evidence. In court, this is measured by the burden of proof. In a civil case, the burden of proof is either by a preponderance of the evidence – which means more probably true than not true – or by clear and convincing evidence, which is a higher standard. In court, the law does not accept mere possibilities as sufficient for proof; we say the proof must at least reach the standard of being more probable than not.

On the criminal side, in the absence of evidence, the law says an individual is presumed innocent. This presumption is not evidence and is not itself a fact, for we do not know whether the individual might be guilty of something or not. The presumption exists only in the absence of evidence and operates to prevent the government from obtaining a conviction, or even from filing charges, unless there is some evidence of guilt.

Just as in other instances, if there is any evidence available, the presumption of innocence disappears. Once there is evidence, the presumption is replaced by the burden of proof we impose upon the government in a criminal case. We say the government cannot convict the individual without proof beyond a reasonable doubt. This is a much higher standard than the civil standard.

The presumption of innocence does not mean the individual is actually innocent. The presumption is merely a rule that guides the court in processing criminal cases in absence of sufficient evidence.

If there is no evidence, the presumption prevents any charges from being filed. If there is some evidence, the presumption disappears, and the issue is determined on the evidence measured by the burden of proof. If the evidence is insufficient to meet the required standard of proof, the law treats it as though there was no evidence on point. If the defendant is found not guilty, it does not mean he is innocent; it merely means the government did not produce sufficient evidence to convince the jury beyond a reasonable doubt. There are many instances where a jury may actually conclude that a defendant is possibly guilty, or even probably guilty, but will not convict because they are not satisfied that proof is beyond a reasonable doubt.

What of the situation here, where Judge Kavanaugh was faced with the compelling but somewhat vague accusations of Dr. Blasey-Ford? The government is not charging him with a crime, so testing the sufficiency of the witness’s story against the specific elements required for the criminal charge is not involved. There is evidence. The testimony of the gentle professor is evidence. The law is clear that the testimony of a single witness is sufficient for the proof of any fact, so there is no presumption to apply. The question, then, does not turn on the presumption of innocence but rather on the burden of proof.

What is the burden of proof to apply? In a criminal case, the burden of proof would be beyond a reasonable doubt, but this is not a criminal case. In a civil lawsuit, the burden would be by a preponderance of the evidence; mere possibilities are not enough. But this is not a lawsuit.

The issue under examination is the constitutional duty of the Senate to advise and consent. The constitution does not say what the burden of proof should be in such proceeding, and to my knowledge and research, there is not a rule in the Senate Manual that would apply here. As such, the standard to be applied becomes a matter within the inherent discretion of each senator. Proof to some degree of probability is reasonable, but so too are mere possibilities, or intuition, or even hunches if the senator determines such to be sufficient.

The point here is that the presumption of innocence plays no part in this process. It is the burden of proof that matters, and that is up to the individual senator. It is up to the senator how the testimony of the gentle professor is to be evaluated against the evidence produced by the judge.

How high is the senator going to set the bar, and how much weight is to be given to the evidence that is on the table? These are all matters of discretion for the individual senator to apply in acting upon the constitutional duty imposed to advise and consent. The decision under senate rules should be a matter of individual discretion, left up to each the individual senator.

Instead, and from all appearances, the majority party has treated this case as a matter of partisan expediency and has dictated the result to its members. Senator Durbin knew exactly what he was talking about.