The latest update on the controversial battle to confirm Judge Brett Kavanaugh to the U.S. Supreme Court is now spinning its way through the news cycle. Rachel Mitchell, the Arizona prosecutor chosen by Republicans on the Senate Judiciary Committee to question Kavanaugh and his accuser, Dr. Christine Blasey Ford, states that she would not have filed charges of sexual assault based on the information currently available. After this statement, many pundits sympathetic to Kavanaugh jumped board, stating that he deserves the presumption of innocence and should be appointed to the Court.

Well, yes and no.

The presumption of innocence attaches to a criminal trial.  The prosecutor has to prove each and every element of the crime beyond a reasonable doubt.  It is a heavy burden. 

And as a former prosecutor, I agree.  This case would not be filed in a court of law today.

The focus is on today.  This distinction is important, because an ethical prosecutor cannot file charges based on the word of the victim alone. There must be some other corroborating evidence.  This is what makes delayed reports of abuse and assault so difficult. There is very little by way of corroborating evidence decades away from the crime.

However, the FBI has conducted an investigation with the results now before the Senate. They may or may not uncover evidence that corroborates her claim.

But even that is not to the point. 

This is a job interview, and no presumption of innocence applies to a job interview. There is never a guarantee when one interviews for a job that he or she will get it. Any number of reasons can be invoked – experience, whether the applicant will fit into the office culture, or if the applicant would be a good ambassador for the company or brand.

How many cases have you heard of where folks were not hired due to their social media posts? Thirty-seven percent (37%) of companies peruse social media networks to research candidates. A while back, when I was going through the process of seeking a judicial appointment in Miami, I was advised to shut down all of my social media platforms. Why? Because one post of me drinking a glass of wine at dinner could be misconstrued. It might lead persons involved in the decision process to believe I was a partier and unfit for the bench.

Seriously. 

My friends who have applied for positions at the U.S. Attorney’s Office have been told to make sure their finances were in order, and to be ready to discuss any family members who may have had interactions with the criminal justice system. I’ve known attorneys who had offers from the U.S. Attorney’s Office revoked due to not passing the background check. 

What caused the failure? Having a prior bankruptcy from many years ago.

The bottom line is: If there are questions about a person’s past, integrity, and demeanor, employers are within their rights to not hire the person. As long as the rejection is not due to race, gender, ethnicity, religion, sexual orientation, or any other protected class, deciding who you want in your company is up to you.

The same logic applies to the highest court in the land. If there is a question about how a candidate views women -- knowing that cases involving women’s rights will come before the court -- that is a game changer. If there is a question about a candidate’s stability, his honesty… why even bother? There are other conservative judges who are baggage-free. 

Cross off Kavanaugh and move to the next one on the list.

It’s that simple. 

No one is entitled to a job.

Stay informed

ACLU of Florida is part of a network of affiliates

Learn more about ACLU National