Short Take: Franken’s Bus Stop

The role of senator is very different than judge, and the demands of propriety don’t quite align. It would therefore be unfair to try to make a comparison between the situations of Ninth Circuit Judge Alex Kozinski and Minnesota Senator Al Franken. Yet, at a time devoid of nuance, there are similarities worthy of note.

Calls for Franken to resign, and Franken’s announcement that he would resign, eventually, sufficiently soothed the mob that they could turn their pitchforks elsewhere. Now that a little time has passed, and Franken-fever has fallen below the boiling point, the stentorian calls for human sacrifice are beginning to soften.

Sen. Joe Manchin (D-W.Va.), who urged Franken not to step down to begin with — at least not before he went through an Ethics Committee investigation — said the Minnesota senator was railroaded by fellow Democrats.

“The most hypocritical thing I’ve ever seen done to a human being — and then have enough guts to sit on the floor, watch him give his speech and go over and hug him? That’s hypocrisy at the highest level I’ve ever seen in my life. Made me sick,” Manchin said.

Whether it meets the impossibly high bar of being “the most hypocritical thing,” either in Congress or of late, Manchin’s point is well taken. Franken has not yet been given due process. The accusations are not yet proven.

“I and many other people — and specifically feminists — feel that it’s not too late, that he should not resign, and that the rush to sweep him out was ill-conceived, and we think that he has been supportive of women and women’s issues,” said Emily Jane Goodman, a retired New York state Supreme Court judge who’s helped start a Feminists for Franken group on Facebook. “Although we do deplore any kind of gender-based misconduct, we think at the same time he is entitled to a fair hearing.”

Justice Goodman is no apologist for sexual misconduct, but she believes that even an accused man deserves the opportunity to due process before sentence is imposed. Senator Patrick Leahy (D-Vt.), who called for Franken’s resignation, has backed off, as has another senator.

“I think we acted prematurely, before we had all the facts,” said a third senator who has also called for the resignation, and has since expressed regret directly to Franken. “In retrospect, I think we acted too fast.” The senator asked not to be named because of the political sensitivity of the issue among Democrats.

A bold turnaround for a United States senator who is so fearful of “political sensitivity” that he wants to conceal his name from the mob.

Then again, not all the voices have been stifled. Yet.

That includes Sen. Kirsten Gillibrand. The New York Democrat helped lead the charge against Franken the day that POLITICO published the account of a former Democratic congressional aide who said the former comedian tried to forcibly kiss her after the taping of a radio show in 2006.

Gillibrand has said that sending a clear message of zero tolerance is important, and that she was worried that the Ethics Committee process was being used as a shield.

“She has said, ‘He was entitled to a process, but he was not entitled to my silence,’” said one person who has spoken to Gillibrand about the decision.

If zero tolerance and due process used “as a shield” sounds familiar, it’s the same rhetoric used in every war and panic used to justify the mob’s mindless fury. And like all panics, this one is different than the War on Drugs or internment of Japanese because this time its the most horrible thing ever. Sure, that’s what they said all the other times, but this time it’s REALLY TRUE!!!

Franken is entitled to due process. Franken should be given the opportunity to be heard, to be fairly considered. Hysteria and fury aren’t conducive to sound deliberation, and he’s every bit as entitled to it as college males, hypocrisy notwithstanding.

Kozinski was too, not because his conduct, if true, was remotely acceptable, but because due process is what we provide anyone accused of an offense in America. Convict first, punish after. And then punish proportionately.

The irony that so many of the mob cry for these things for one accused and cry against them for another is one of the similarities between Franken and Kozinski. The irony that Franken is still holding on to the edge with his fingertips, allowing calmer heads to raise the possibility of due process, while Kozinski’s adoring friends stood silent, or were his accusers, is a difference.

It’s good that people are calling for reflection, for due process for Franken, that the allegations of his accusers should be proven and that he has a full and fair opportunity to be heard. It would be far better if that opportunity were given to every accused. But the unduly passionate can’t wait for due process before they conduct their execution.

13 thoughts on “Short Take: Franken’s Bus Stop

  1. Billy Bob

    Franken is a comedian-turned-politician. The other 99 senators are politicians-turned-comedians, with perhaps a few exceptions: Sen. Joe Manchin, for example, cited above. Strange times. We’re wondering how many books by authors named Jeffrey will be written about Trump-era hysterias?!?
    Kozinski? Well, maybe it was time to go. Forty years is long enough on any bench. But under threat of the mob? Not really, not good.

  2. B. McLeod

    Now that the Alabama senate race has passed and there is no further need to game it, the “woke” want to have their wedding cake but eat it too.

    1. SHG Post author

      As Appellate Squawk admonished us criminal defense lawyers, our failure to stand up for due process for Moore, whom most of us found utterly despicable, was cowardice. If we want due process for all, we need to demand it for those we hate the most.

      So the Dems no longer need Franken to beat Moore? True dat. But does their political machinations alter our dedication to principle? Just because progressives care nothing for principle doesn’t relieve us of our responsibility.

      1. B. McLeod

        If you look at what they are saying here, it has squat to do with due process. It isn’t that they want to consider whether he actually DID what he is accused of. Hell no. What they are talking about is their desire to weigh all his being-on-their-side points against his presumed guilt. It isn’t due process, it’s just a more formalized hypocrisy.

        1. SHG Post author

          I’m beginning to get the sense that you’re cynical. Remember, just because you believe they’re malevolent doesn’t mean you get to be too. They are not your bar.

      2. syme

        > our failure to stand up for due process for Moore, whom most of us found utterly
        > despicable, was cowardice.

        I’m not sure there is a more-due process for a politician than the ballot box. And he had his day with such.

  3. MichaelW

    “I think we acted prematurely, before we had all the facts,[…]”

    The critical fact being Roy Moore did not win in Alabama.

  4. kushiro

    According to the propaganda department of the woke (in this case, Jezebel), Franken doesn’t deserve due process because women in Congress who were sexually harassed didn’t get due process. Because that’s how justice works, I guess?

  5. Rigelsen

    Franken has the advantage over Kozinski of having colleagues who can speak out one way or another. Condemned by his colleagues, he can be saved by them. Kozinski’s judicial colleagues, not having prematurely condemned him, could not then come to his rescue. That and “judges must be above reproach”. Well, at least above personal reproach. Shoddy judging doesn’t count. They should still have absolute immunity in their day jobs, however attenuated the links between their opinions and actual law.

    I do wonder if Manchin, Leahy, and Franken, if he survives, will counsel restraint the next time Gillibrand goes on one her crusades, either against due process in higher ed, or some warlock hunt somewhere. My guess is, they’ll sigh a breath of relief, and, like Hillary, pretend it’s different.

    1. SHG Post author

      An excellent point. Not only were fellow judges silent about Koz, but they were likely hiding, waiting for the townsfolk to come for them for not “fixing” Koz over the many years.

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