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Wednesday, October 03, 2018

Kavanaugh and Power


This Kavanaugh brouhaha reminds me (yet again) of my favorite Heinlein quote:
"Man is not a rational animal; he is a rationalizing animal." (1953)
It's clear to me that those on the right would want Kavanaugh confirmed and would rationalize him to be a saint (he's been literally called a boy scout by some) even if he were an ax murderer. It's also clear to me that those on the left would rationalize Kavanaugh to be an evil rapist and liar even if he were the most perfect human to have ever existed.

And it makes sense because who he is doesn't matter at all - only how one can guess he will influence SCOTUS decisions. For the right, he'll probably be quite good; for the left, he'll probably be very bad.

If on the right, I too would want him confirmed even if he were an ax murderer. I too would smear his opponents and detractors and do everything I could to see him confirmed. I too would then rationalize my actions by actually deceiving myself into believing them to enable me to continue to feel good about myself.

If on the left, I too would want the Senate to vote against confirmation even if he were a wonderful person. I too would dig up folks willing to make damaging allegations against him whether or not true. I too would focus on everything he's ever done wrong because, of course, I'm perfect and only perfect humans should be allowed on the supreme court. I too would then rationalize my actions by choosing to believe those making the allegations and by pointing to the long list of flaws that a human more than a half-century old and in the public eye for much of that time will have exhibited.

For me personally? I really don't much care if he's confirmed or not.

However, I do conclude from this circus that SCOTUS has way, way, waaaaaaay too much power and that the federal government overall has way too much power. Otherwise, people wouldn't find it necessary to do so much rationalizing.

31 comments:

Clovis e Adri said...

"However, I do conclude from this circus that SCOTUS has way, way, waaaaaaay too much power"

Well Bret, that would be by design. They have "supreme" in the name for a reason.

Yet, most of the future SCOTUS decisions that galvanize people defending or attacking him have little to do with power. It is all about the cultural war.

Bret said...

Being able to influence the culture war is not a form of power? To me, controlling the culture is one of the most important forms of power. Controlling what people believe is more power than controlling life and death, in my opinion. To paraphrase Stalin, a million deaths is a statistic, a million people believing what you want them to is true power.

Hey Skipper said...

There is a much deeper issue here.

Ford's experience, whatever it was, is at this juncture completely, trivially, unimportant.

Assume three things: One we do know: Ford's accusation has absolutely no corroborating evidence. And one we don't: her account is correct. Therefore, there are only two people in the universe who know what went on -- Ford and Kavanaugh.

The problem, and it is huge, is that with those two facts, and the unavoidable conclusion, it is impossible for *everyone* else distinguish Ford's charges from a slanderous denunciation.

Which raises an extremely serious question. What kind of society do you want to live in, one subject to the rule of law, or one where denunciations from a privileged class -- women, who must always be believed -- are taken as prima facie evidence of guilt?

At this point, even if Kavanaugh is confirmed, we have taken a very long step down the latter road. It goes straight to a hell I don't want any part of; consider, for a moment, those societies where mere denunciations ruined or ended lives.

This is where Ford (and every vile Democrat on that committee, and pretty much the entire MSM, for that matter) revealed herself to be completely incapable of even basic moral reasoning. Her experience (assuming, once again, its objective truth) is so pathetically trivial compared to the consequences her 36 years of inaction have invariably and foreseeably caused that she should live the rest of her life in utter, abject shame at the damage her negligence and stupidity have caused.

For the right, he'll probably be quite good; for the left, he'll probably be very bad.

Kavanaugh is a strict constitutionalist in Scalia's mode.

Does that mean the Constitution is bad for the left?

Bret said...

Hey Skipper wrote: "What kind of society do you want to live in, one subject to the rule of law, or one where denunciations from a privileged class -- women, who must always be believed -- are taken as prima facie evidence of guilt?"

The thing that doesn't quite work for me about this question is that of the context of the allegation. If Ford's accusation led to Kavanaugh being convicted of rape and imprisoned, then yes, that would be a travesty of due process and justice.

But this isn't that. At worst, Kavanaugh will continued on as a nicely paid federal judge. In some sense, this was just a job interview that didn't go very well and he might not get the job. Tough luck and all that, but lots and lots of people have had bad job interviews and didn't get the job.

Indeed, if, as an employer, I heard allegations, even just rumors, about a potential employee that I found credible and disqualifying, even with limited or no corroboration, I would not hire said employee. I simply can't afford to take the chance that the rumors are true and there are other people I could hire instead. This has always been true for employers.

In this case, every senator is basically in that position. They can choose to believe or disbelieve Ford based on the available evidence. That's both their prerogative and their duty. In my opinion, Ford's accusation falls shy of adequately credible/proven. But my opinion doesn't count. It's the Senators' opinions that count and if they find Ford adequately credible and they believe that a 30+ year old incident should be taken into account, then so be it.

I find the public part of this circus to be far more troubling though. Kavanaugh's public persona and the reputation of him and his family has been trashed. The problem is that job interviews aren't generally public and I don't think these job interviews should be public either. The committee and floor votes? Sure, but not the actual proceedings and allegations. Then this indeed would've just been a job interview gone bad.

I suppose Ford could have gone public with her allegations even if the proceedings were private. But that's also always been true. You can say whatever you want about anybody you want as long as it's not provably slanderous.

Free speech and all that.

Clovis e Adri said...

Bret,

---
Controlling what people believe is more power than controlling life and death, in my opinion.
---

Oh, it may well be, but to control SCOTUS decisions is a far cry from actually having influence on what people believe - it is mostly about making sure your side of the culture wars will impose itself over the other side, which will often lead to more zealous beliefs by the losing side (thereafter, having negative influence on what people believe).

Hey Skipper said...

The thing that doesn't quite work for me about this question is that of the context of the allegation. If Ford's accusation led to Kavanaugh being convicted of rape and imprisoned, then yes, that would be a travesty of due process and justice.

Just like free speech is about far more than a limit on laws Congress can pass, so was this atrocious attack on Kavanaugh.

Because if it worked, it would be tried again, more often.

Because a falsely accused Kavanaugh can suffer far more than what the penalty would have been for the alleged crime: what he was accused of doing amounted to a misdemeanor in Maryland. What he actually suffered was far, far worse, than that.

I suppose you would suggest lynch mobs aren't a violation of due process.

But this isn't that. At worst, Kavanaugh will continued on as a nicely paid federal judge.

Lemme get this straight. Kavanaugh's nomination is denied because enough senators found the accusations credible. That, therefore, means Kavanaugh is guilty of perjury, should be removed from the DC circuit court, and disbarred, right?

There is no having it both ways.

After all, if it turned out that what at this point is mere innuendo turned out to actually have some verifiable facts that went along with it, then Kavanaugh would have been turfed in a trice.

You can say whatever you want about anybody you want as long as it's not provably slanderous.


No, you can't. Ford's accusation, because it had absolutely no accompanying evidence, is the very definition of slander. Kavanaugh won't sue her — women are never held nearly as accountable as men for their public behavior — but as a matter of law, he would have a very strong case, despite being a public figure.

This has nothing to do with free speech.

Bret said...

Hey Skipper wrote: "That, therefore, means Kavanaugh is guilty of perjury, should be removed from the DC circuit court, and disbarred, right?"

Nope. An accusation being credible is far below the level of proof for perjury. Do you have any links showing that Kavanaugh would've been removed from his previous position had he not been confirmed to SCOTUS?

Hey Skipper wrote: "Ford's accusation, because it had absolutely no accompanying evidence, is the very definition of slander."

I don't think so. Her accusation would have to be proven false for him to win a slander lawsuit. "He-said/she-said" cases without solid proof generally neither convict one of the assault nor find the other to have been slanderous.

Hey Skipper wrote: "I suppose you would suggest lynch mobs aren't a violation of due process."

Worrying about whether or not murder is a violation of due process makes little sense to me.

Peter said...

Skipper:

I think your focus on due process, evidence, etc. is a mistake--Bret is right that it wasn't a criminal charge--but it's an understandable mistake because what else can men say about these kinds of allegations today? Certainly not what many of us are thinking, which is "Oh, give me a break. We're supposed to deny a Supreme Court confirmation because of this?". What struck me was how, when Ford's allegations first surfaced, GOP senators were quick to treat her with kid gloves and rushed to assure everybody they took sexual assault deadly seriously, implying they might vote against him if the allegations bore out. Hypocrisy on all sides ruled these proceedings, but I doubt that was ever the case, nor did many men and lots of women think it should have been.

Because the tsunami of "abuse" allegations we're seeing everywhere all involve indefensible behaviours, it's very risky today to try to publicly distinguish among them in terms of gravity and consequences. Welcome to the therapeutic culture and the re-emergence of the dainty, vulnerable Victorian damsel. You have to be a woman, preferably a progressive, to get away with saying what many are thinking, as this Dem contrarian does masterfully.

For what it's worth, Kavanaugh struck me as one of the privileged frat boys I went to college with. They combined hard partying with attitudes of droit de seigneur towards girls lower down the social scale and angry indignation towards anyone with the temerity to challenge them about anything. They weren't rapists or even particularly dangerous to a woman who was at least half sober, but they were on the prowl. Do you remember that scene from The Social Network when the blue-blooded Harvard frat boys bused in girls from a nearby school for a party? Interesting conversation was not on their minds.

I wouldn't have trusted their accounts of this kind of story back then and I haven't changed much. I accept Ford's story was probably true more of less. If I had been her father back then and learned of it (which I probably wouldn't have), I might have sought him out for what diplomats call a full and frank exchange of views. But if thirty-five years later she was still blaming the incident for a host of personal life-damaging demons and seeking payback of some sort (a.k.a. closure), I would be struggling to find a loving way to tell her to "man up" and get on with it. I certainly wouldn't have much sympathy with her effort to derail his career. Unless I were a modern politician, that is, in which case I would no doubt stand tearfully before the cameras with her and vow to help her banish the perp from public life and right this outrageous oppression by the patriarchy. No doubt I would claim to be doing to to make the world a safer place for young women everywhere.

Bret said...

Peter,

Nice find on that Shriver article. You and she pretty much describe how I see it. Except maybe I'm even a little more baffled.

MIT bused in girls for our parties. Well, that's not quite right is it. MIT/Wellesley provided a transportation service that enabled men and women to travel between the two schools should they so desire. And women who chose to utilize said service on weekend nights and ended up at my frat parties didn't do so by accident or because they were coerced. And those women didn't come to a frat at the nerdliest school in the universe for "interesting conversation." And if they left the party to come up to my room (voluntarily, of course), would you blame me if I assumed they were perhaps interested in other things than "interesting conversation"? And as long as I accepted "no" as an answer, was it really so criminal if I tried to kiss them or perhaps even tried to remove articles of clothing? Because you know, the vast majority of high-school and college males did those sorts of things. At least during that era.

Yet if you look at Ford's accusations, it's pretty much that. Yeah, apparently there was an onlooker and perhaps there was some more coercion than there should've been. But really, that incident is pretty tame. If that's rape, we should probably be jailing most men.

And if women can't withstand incidents like that, then they clearly do need the protection of the patriarchy. They certainly shouldn't go to parties unchaperoned by a family member. Ever.

We all do stupid things from time to time and not just me. One time, a girl was at our frat party and we were hitting it off pretty well. We went up to the roof of the frat to talk. No, really, to talk! It was a public area, there were other people up there and it had a really nice and romantic view of the Charles river.

Then she leans over, pukes on my feet and promptly passes out. WTF! She didn't even seem that drunk! So I go to find her friends. No friends to be found, they had apparently left. WTF! What kind of friend leaves a drunken frat party without making sure everyone is ok?!? I had no idea where she lived so I found her a safe place to sleep it off and borrowed a car to take her home in the morning.

The point is that women also do incredibly stupid things. 99% of men wouldn't've taken advantage of that situation (especially after being puked on), but she was still kinda lucky that I was one of the 99% and not one of the 1%.

Yet she could probably make up some horrific story about how I treated her (as could other women I guess) and I couldn't possibly disprove it.

Peter said...

If that's rape, we should probably be jailing most men.

If I may be forgiven the mother of all politically incorrect comments, I wouldn't be at risk even in today's climate climate, which leaves me wondering sometimes whether, rather than being a feminist model, there isn't something wrong with me.

Your story about the frat party makes you a pretty honourable guy. I agree with the comment about her friends disappearing, but how to inject that notion into the public debate today is beyond me.

Where are you, erp?

Bret said...

Peter wrote: "I wouldn't be at risk even in today's climate climate..."

Sure you are. Any woman who's ever plausible been in your presence can make up anything she wants about you with no risk to her and enough people will believe her to the extent that your reputation will be at least tarnished.

Peter wrote: "...makes you a pretty honourable guy..."

I don't know anybody who wouldn't've have been that "honourable." Men just aren't as bad as (some) women are making us out to be.

Peter wrote: "I agree with the comment about her friends disappearing, but how to inject that notion into the public debate today is beyond me."

I told both my daughters about that incident. And my main point was that they needed to stick with their friends and make sure their friends stick with them. Sure, a point was also that getting drunk and passing out is stupid too, but that's really secondary because sometimes things go wrong even if not your fault and sticking together is the best protection for all things.

Peter said...

Let's be careful here, lest we devolve into a boys-will-be-boys defense of the indefensible. Teen-aged boys are, by and large, not that honourable, which is why so many parents their star-struck daughters getting into trouble. The problem is that, as with much of what we're seeing today, neither of the ideological extremes we are arguing about correspond to the realities many experience. For example, I am amazed at the number of "modern" parents who publicly join the chorus about how women should have the right to walk the streets at night and drink alone in strange bars wearing whatever they want, but who will then do everything they can to keep their daughters from doing it. I trust you wouldn't tell your daughters that 99% of the customers in such places are honourable.

Hey Skipper said...

[Bret:] Nope. An accusation being credible is far below the level of proof for perjury. Do you have any links showing that Kavanaugh would've been removed from his previous position had he not been confirmed to SCOTUS?

I've read it in a couple places, but the reasoning is clear enough: accepting an accusation in the absence of evidence has no limiting principle.

Assume the Senate declined to confirm Kavanaugh because they believed her accusation to be factual. Therefore, his denial, under oath, must be a lie. There isn't any shading this. One edge of that sword doesn't just disappear.

And then there is the repeated use of the term "credible". I find the abuse of that term absolutely incredible.

Just to refresh: credible (adj): able to be believed; convincing: few people found his story credible | a credible witness.

What does it take to make something credible? Several polls showed that nearly all the people who felt Kavanaugh shouldn't be confirmed believed Ford, and vice versa. But Ford's accusations and Kavanaugh's qualifications are entirely independent — there should be absolutely no correlation; the truth values of both propositions are entirely independent.

Absent motivated reasoning, of course, which has no limiting principle.

The only means to a limiting principle is to reject accusations unaccompanied by evidence.

Hey Skipper said...

[Hey Skipper:] "Ford's accusation, because it had absolutely no accompanying evidence, is the very definition of slander."

[Bret:] I don't think so. Her accusation would have to be proven false for him to win a slander lawsuit. "He-said/she-said" cases without solid proof generally neither convict one of the assault nor find the other to have been slanderous.


Here is an article advocating Kavanaugh sue Ford for defamation.

Defamation is a false statement that exposes a person “to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.” A statement that falsely charges a person with the commission of a crime or immorality is considered defamatory “per se” and presumed to cause injury.

Note in particular the second sentence. There is no way to demonstrate the truth of her accusation — it is nearly evidence free, and what little evidence there is contradicts her account. So what should the standard be? Must Kavanaugh have some specific exculpatory evidence in order accuse her of defamation?

You must be able to see the problem here. A fantatastical tale, constructed with just a bit of care, will be impossible to refute. And by a bit of care, I mean that the accuser must have sufficient knowledge of the accused to construct a framework of plausibility upon which to hang the tale. (See, for another example, the defamatory dossier on Trump that the Clinton campaign bought.)

Because Ford moved in the same milieu as Kavanaugh, she had details that provided credibility to her accusation, but none of those details bore on the accusation, itself.

Ford, as a woman, belongs to a protected class, and therefore Kavanaugh will not sue her for defamation. But she sure as hell deserves it.

Hey Skipper said...

[Hey Skipper:] Hey Skipper wrote: "I suppose you would suggest lynch mobs aren't a violation of due process."

[Bret:] Worrying about whether or not murder is a violation of due process makes little sense to me.


Surely, you are familiar with metaphors.

Ford's accusation was clearly defamatory, in the sense that the lack of evidence makes it indistinguishable from provable defamation, a la UVA, Duke Lacrosse, etc. Despite cautionary history, there was, in fact, a lynch mob that was perfectly happy to destroy this mans reputation based upon nothing more than feelz and antagonism towards judges who take the constitution seriously.

Yet you seem untroubled by this outcome, even though it happened outside the formal justice system. Due process applies to much more than just the courtroom.

Hey Skipper said...

[Peter:] For what it's worth, Kavanaugh struck me as one of the privileged frat boys I went to college with. They combined hard partying with attitudes of droit de seigneur towards girls lower down the social scale and angry indignation towards anyone with the temerity to challenge them about anything.

Hmmm. I came from a privileged background. I was a frat boy at USC.

Now what?

I accept Ford's story was probably true more [or] less.

This is a perfect example of question begging, the very thing due process, both in its legal and cultural contexts, is supposed to guard us against.

The only defensible position to take on her story is agnostic: there is no possibility of distinguishing between more, less, or not at all.

In the mid-1980's, I lived and worked in Manhattan Beach, CA.

You may remember the McMartin Preschool trial.

The school was just two blocks down the street from the office. That, alone, wouldn't give me any particular insight into anything. However, I was working for an electrical and computer engineering company. One of the things we did was talk radio show management. Remember, this was pre-internet. We had a system where several call screeners would take incoming calls, enter the information. Via a local network of our design, the talent would see the screened callers, alongside show segment timing. The details aren't important, except as a means of explaining why I was in the KABC booth during the Micheal Jackson show (then the top rated radio talk show in LA) during an interview of one of the early defendants in that trial.

Her life was pretty much trashed by the time they dropped charges against her.

We really have to watch out for that whole "true, more or less" thing.

Consider the possibility of "less", taken to the limit of "not at all". I was one of those privileged frat boys, and I don't recognize me, or anyone else I knew in the fraternity in droit de seigneur. Were there at least a few guys somewhere fitting that stereotype? Of course.

But that "more or less" line of reasoning — since some guys in fitting that description took liberties with women, therefore Kavanaugh likely did — goes very quickly and directly to a very ugly destination.

Take home assignment: guess what that destination is, and marvel at why the Democrats were headed there, pell mell.

Peter said...

Skipper, the whole point of my comment was that, regardless of who is telling the truth, thirty-five year old accounts of drunken teen-aged fully-clothed gropings do not meet my standard for disqualifying someone for public office. By putting all this emphasis on credibility, evidence and legal proof, you are in some ways doing the Dems work for them, because that suggests he shouldn't have been confirmed by any senator who believed her. If they are or should be as important as you say, isn't it astounding that the senators split along strictly partisan lines on credibility and the sufficiency of the evidence? And that not one of them seems to have been swayed by either of the accounts?

We were not in a legal criminal or defamation proceeding here, we were in the court of public opinion. To say one is prepared to more or less believe one party over the other is not the same thing as saying someone has met a legal burden of proof or to make an empirical evidence-based pronouncement of objective truth with penal, financial or professional sanctions attached. If I were on a jury I hope I would be much less cavalier with the good name of you righteous frat boys, but you know, in everyday life I might find myself prepared to believe "more or less" someone's claim that thirty years ago, they saw a prominent successful engineer drunk and singing vulgar songs at a football game. An outrageous slander of all the members of a noble profession, I know, but there we are.

Your arguments are basically one half of the perennial debate over how to deal with sexual assault allegations, which are almost always private and un-witnessed by their nature. They are compelling, but so are the arguments of the other side, which is why the debate is perennial. But I must comment on two of your points:

The only means to a limiting principle is to reject accusations unaccompanied by evidence

Testimony is evidence. In a trial where the only evidence is the competing testimonies of the parties, it is very dangerous to convict without some corroboration, and juries are regularly cautioned against so doing, but if they are absolutely 100% convinced that the accused is lying and the complainant is telling the truth, they are entitled to convict. It actually happens quite a bit in cases where there is much less at stake in terms of consequences. Judge Judy doesn't worry too much about whether her credibility calls can be corroborated.

You also seem to imply that one of Ford and Kavanaugh had to have been lying and the other telling the truth. I don't buy that at all and I believe the experience of many lawyers and judges (and numerous psychological experiments) backs me up. One of the important reasons we have statutes of limitations is because memories become more unreliable as time passes, especially if the parties were drunk. It is quite possible that both of them were being sincere and honest in the sense of accurately testifying to what their memories were. At least, more or less. :-)

Hey Skipper said...

[Peter:] By putting all this emphasis on credibility, evidence and legal proof, you are in some ways doing the Dems work for them, because that suggests he shouldn't have been confirmed by any senator who believed her.

Then I must have written badly. My goal was to make the point that any accusation without corroborating evidence (and testimony by the accuser shouldn't count) can have no more weight than a denial without corroborating evidence of that accusation -- the combination presents a nullity which requires rejecting all such accusations, no matter who makes them, or how sympathetic we might find the accuser: any senator professing to believe her is a fool, any senator professing to believe Kavanaugh is a fool. The only defendable reaction is to reject the accusation.

Yes, that inevitably tilts the table against the accuser, but the alternative is far worse.

You also seem to imply that one of Ford and Kavanaugh had to have been lying and the other telling the truth.

With respect to Ford, there are four possibilities: she accurately recounted what happened; her recounting of an actual event is inaccurate as to whom it involved; she is delusional (she believes the event happened, but in reality it didn't); or, she is lying.

Kavanaugh's denial presents a three-way dilemma: his denial is factually correct; he is delusional (he forgot an event that actually happened); or, he is lying.

That means there are many consistent combinations of those two sets (identifying them all is an exercise best left to the reader). Deciding among them is impossible.

I believe the following are true: given her social milieu (professor in a overwhelmingly progressive subject at an overwhelmingly progressive school) she identifies with #Resist; she moved in the same social circle as Kavanaugh; the #MeToo movement has provided female accusations of male sexual aggression de facto legitimacy.

Which means she had motive, means, and opportunity to commit the crime of defamation.

But that is just my opinion. And while the bases for it are correct, they exist completely outside her accusation. After all, just because she has means, motive and opportunity to lie doesn't mean, can't mean, she actually is.

Therefore, I would be making a moral error to accuse her of lying, and it would be just as much a moral error to accuse Kavanaugh of lying.

The are only two ways out of that morass. Ford having the moral sense to not make the accusation, or the Judiciary committee, in the absence of corroboration, to reject it out of hand.

Testimony is evidence. In a trial where the only evidence is the competing testimonies of the parties, it is very dangerous to convict without some corroboration, and juries are regularly cautioned against so doing, but if they are absolutely 100% convinced that the accused is lying and the complainant is telling the truth, they are entitled to convict.

I understand testimony is evidence, otherwise there would be no such thing as perjury. I'm curious as to how a jury could, for instance, believe the accused is lying absent any evidence beyond the testimonies.

And how that could possibly apply in this case.


Peter said...

You are forgetting another alternative for both of them, which is that their memories were distorted by time and alcohol.

To me, these issues of proof and evidence are a consequence of an impossible tension between expanding the scope of sexual assault to behaviours that once would have been seen as somewhere between misdemeanours and the boorish and demanding incredibly severe penal or professional sanctions for them. Plus the sole evidentiary determinant of guilt is now the subjective state of the woman at the time (or, chillingly, some time after), which speaks of a stark choice between finding either a perfectly lawful, even healthy, indulgence that is absolutely no one's business and one of the more serious offences in the criminal code. In the bad old days, there were objective markers about what "nice girls" did and didn't do that were used to help resolve the credibility conundrum. I accept they were often unjust, humiliating and prejudicial to complainants (and sometimes the accused), but nothing has replaced them.

Which leads me to another question I haven't found the courage to ask any woman. If today anything goes with anyone anywhere and it's all completely private provided there is consent, why is there any distinction between sexual assault and common assault at all? Again in days of yore, while there were certainly practical issues like unwanted pregnancies, there was also a kind of metaphysical magic to a woman's sexuality that governed common public ideas of modesty, reputation, virginity, etc. and that had serious potential consequences for any woman who ignored them or, considerably less so, any man who violated them. That's now all seen as incidental to the bad old patriarchy, which it undoubtedly was. But why then do we hear so much about lifelong traumas, difficulties in relationships and years of counselling that we wouldn't seriously expect to result from a punch or a slap? What precisely is being violated? I suspect the answer is not one that should comfort horny young men, who should be taught by their fathers that, despite the yearnings of men since time immemorial, there is no such thing as consequence-free sex.

Bret said...

Hey Skipper wrote: "...the combination presents a nullity which requires rejecting all such accusations, no matter who makes them, or how sympathetic we might find the accuser..."

I don't think that's true even in a court of law but it's certainly not true in the court of public opinion and anywhere outside a court of law. Note that a Senate hearing is closer to a court of public opinion (after all, they're representatives of the court of public opinion) than a court of law.

You had kids. Couldn't you tell when they were lying? Or were they such angels that they never once told a lie? If they did occasionally lie, weren't you confident enough in said assessment that you could pass judgement and punishment based on that? Or did you always insist on corroborating evidence? If not, why not?

The point is that a lot of people can tell when a lot of other people are lying. Oh sure, a lot of times mistakes are made, but the court of public opinion still uses that judgement to assess a great number of political things. And I believe that it should.

If I'm interviewing a prospective employee and I suspect he or she is lying about something I won't hire them. Maybe I'm wrong and they just happen to have a shifty eyed personality, but tough, that is my prerogative, just as it is the prerogative of all of us in the court of public opinion (including Senators). I'm allowed to assess the credibility of those around me without corroborating evidence based on other observations and interactions.

I found neither Ford nor Kavanaugh particularly credible. Mostly because the event was so long ago when they were both so young. As a result, I personally, as a member of the court of public opinion or if I were a Senator wouldn't've used the alleged event as a reason to not confirm him.

However, now we get to the politics of the situation. If I were a Republican Senator, I would've bloviated about how I'm sure women should be believed but without further evidence I couldn't see preventing Kavanaugh's ascension to SCOTUS. If I were a Democrat Senator, I would've professed my complete confidence in the sincerity and honesty of Ford and voted to NOT confirm Kavanaugh because he's clearly a monster.

And, of course, that's exactly what happened. Both parties used the event as cover for what they were gonna do anyway.

As usual, for most things political, evidence, corroborated or otherwise, has nothing to do with it.

Peter said...

Very well said, Bret.

Hey Skipper said...

[Bret:] You are forgetting another alternative for both of them, which is that their memories were distorted by time and alcohol.

No, I didn't. Delusional covers that territory. Assuming neither is lying, for one of them, but not both, their memory of what occurred is consistent with what actually occurred, and the other is delusional. Flip a coin, because that is as close as you are going to get to knowing one way or the other.

You should not focus on the issue of sexual assault. While it is the horror de jeur (not without reasons), there are plenty of other crippling accusations.

I heard you prolifically using the n-word. I saw you spit on Muslims. Why is it you hang around playgrounds so much?

The gap between accusation and guilt (not between proof and evidence) can only be resolved by evidence beyond the accusation itself. This isn't merely a matter of jurisprudence, or job interviews. Eliminating this gap destroyed lives in the McCarthy era, and it is destroying them now.

The point is that a lot of people can tell when a lot of other people are lying.

No. They. Can't.

Even people trained to detect liars have a difficult time determining lies from truth. "The court of public opinion" is absolutely the worst place to sort it out. Of course, if you disagree, you could ask Emmett Till or the Scottsboro Boys what they think. Unfortunately, none are available for comment. Or review the McMartin Preschool horror show. Hmmm, come to think of it, was OJ lying?

If I'm interviewing a prospective employee and I suspect he or she is lying about something I won't hire them.

This is a perfect example of why arguing from analogy is always a bad idea, because doing so almost always omits something germane in order to get to your conclusion — it is a form of question begging. What did you elide here? An accusation external to the interview, which means you are relieved of the task of deciding whether the charge might be true, or down to the accuser manipulating you for personal gain.

You should never allow yourself to arrive at a judgment where none is possible, because doing so is fundamentally immoral.

I found neither Ford nor Kavanaugh particularly credible. Mostly because the event was so long ago when they were both so young. As a result, I personally, as a member of the court of public opinion or if I were a Senator wouldn't've used the alleged event as a reason to not confirm him.

Beware of implicit question begging. "Mostly because the event…" What event? There is no way to know whether the thing happened in the first place. You, along with many other people, have ceded what cannot possibly be established. If Kavanaugh is not lying, which, at this point, is as much in play as every other possibility, then "the event" never existed, and therefore cannot have any point in time. Starting with the assumption that something happened immediately poisons the well. Although, to be fair, the last sentence contains the point I have been trying to make — the alleged event must, for decent, rational humans, be completely disregarded.

If I was a Senator, and not a moral cretin, I would have voted to confirm Kavanaugh just to demonstrate that eliminating the evidentiary gap between accusation and conviction is utterly heinous.

Instead, the moral cretins exposed themselves, and Kavanaugh got confirmed anyway. Well done.

As for his reputation? Who gives a damn.

Peter, do you have any real world examples of juries reaching convictions based solely upon hearsay evidence?

It's an honest question, btw.

Bret said...

Hey Skipper wrote: "...the moral cretins exposed themselves..."

I guess that's the bottom line really. I, and much of the rest of humanity are moral cretins, at least in your view. I judge and take actions on said judgement all the time with extremely little and sometimes no evidence, just a whim or an intuition. That's served me pretty well so far, but perhaps you're right and people like me (i.e. nearly everyone) are totally screwing up civilization. Tough luck for civilization I guess.

There are people I don't like - with no evidence for not liking them - I just don't like them.

There are people I don't trust - with no evidence (at least not hard evidence) for not trusting them - I just don't trust them. (And no, I won't hire someone I don't trust. Period.)

There are people I love - for no good reason whatsoever - I just happen to love them.

I use reason, rationality, evidence, etc. for absolutely as little as I can get away with since it rarely makes me happy, fulfilled, satisfied, content, etc.

The court of public opinion may indeed be the worst place to sort things out. Doesn't much matter because that's where it OFTEN IS sorted out, whether or not you like it.

And actually, the court of public opinion is often MUCH better than actual courts. You brought up the McMartin Preschool "horrow show." Well, that went to an actual court and those defendents would've done much better in the court of public opinion - they could've just dropped everything and fled and started over somewhere else. My divorce would probably do better in the court of public opinion.

Also note that the court of public opinion is not the same thing as a lynch mob. I personally find it bizarre that you consider the trashing of Kavanaugh (who I'm nearly certain would still have had a fine career had he not been confirmed to SCOTUS) similar to the murder of Emmett Till. I know I'm a moral cretin, but I just don't see how those are the same. Till was murdered by 2 guys, not the widespread public. Those 2 guys were acquitted, not by the court of public opinion, but in an actual court. No public opinion involved, and to the extent there was public opinion, it sparked the civil rights movement which prevented further Emmett Tills.

Peter said...

Peter, do you have any real world examples of juries reaching convictions based solely upon hearsay evidence?

I presume you don't mean hearsay, which is a statement by a third party that they were told or informed of something. It's generally inadmissible to prove the accuracy of the fact (but not to prove that the statement was made), but there are lots of exceptions. Evidence as to what's in public or business records or what history tells us is basically hearsay. Ford's testimony wasn't hearsay. That would have been been if she hadn't testified herself but a friend came forward and swore she was told by Ford what happened.

If you meant convictions based on credibility alone, lots, especially in sexual assault cases where there is no dispute about what happened, only if it was consensual or not. The Kobe Bryant case was headed that way before it was withdrawn and settled at the last minute in one of those creative "I'm innocent, but here is lots of money for your trouble" resolutions. Here's a legal analysis from before that makes it clear it could have happened.

In the Kavanaugh/Ford case, there was no agreement as to what happened, which is why there is no way he would have been convicted in criminal proceedings. If there had been an agreement on the facts and the only issue had been consent, he would have been toast because she was 15 and legally incapable of consenting.

Now a question for you. Aren't you basically saying there should be no legal redress for a woman who claims she was assaulted unless she has physical wounds?

You should never allow yourself to arrive at a judgment where none is possible, because doing so is fundamentally immoral.

Immoral? Not risky, not unreliable, but immoral? You're a prude, Skipper. You must be the only guy I know who would think these kids are morally deficient. :-)

Hey Skipper said...

It seems that Cory Booker has been accused of homosexual male assault.

The MSM has not covered it at all.

Until there is some sort of corroborating evidence other than the accusation itself, that is exactly the way it should be, no matter how much I dislike Booker and his politics.

Hey Skipper said...

[Bret:] I, and much of the rest of humanity are moral cretins, at least in your view. I judge and take actions on said judgement all the time with extremely little and sometimes no evidence, just a whim or an intuition.

But that's not what I am talking about, which is this: defamation.

The court of public opinion may indeed be the worst place to sort things out. Doesn't much matter because that's where it OFTEN IS sorted out, whether or not you like it.

And actually, the court of public opinion is often MUCH better than actual courts. You brought up the McMartin Preschool "horrow show." Well, that went to an actual court and those defendents would've done much better in the court of public opinion - they could've just dropped everything and fled and started over somewhere else.


The reason those charges went anywhere was the hysteria of public opinion, just as with Duke Lacrosse and UVA. Had they fled, there is no reason to believe they wouldn't have been hounded no matter where they went.

Also note that the court of public opinion is not the same thing as a lynch mob. I personally find it bizarre that you consider the trashing of Kavanaugh (who I'm nearly certain would still have had a fine career had he not been confirmed to SCOTUS) similar to the murder of Emmett Till.

I find it bizarre you can't see that as the metaphor it obviously is, in precisely the same sense as it has been famously used under nearly identical circumstances. Remember who said "… a high-tech lynching …"?

[Peter:] If you meant convictions based on credibility alone, lots, especially in sexual assault cases where there is no dispute about what happened, only if it was consensual or not.

Thank you for that link.

Obviously, Kavanaugh would never have been convicted in criminal proceedings. Indeed, given the complete lack of corroborating evidence, there's no chance charges would even be brought.

Now a question for you. Aren't you basically saying there should be no legal redress for a woman who claims she was assaulted unless she has physical wounds?

What I am basically saying is a general proposition: all defamatory accusations unaccompanied by corroborating evidence should be rejected out of hand.

So without any evidence the [assault | shop-lifting | stalking | reckless driving | racism] even occurred, then what legal redress is possible?

Above I mentioned that that those who found Ford credible — all women must be believed — are headed to a very ugly destination. Check that. They have already arrived, they just haven't figured out what else is there.

Peter said...

What I am basically saying is a general proposition: all defamatory accusations unaccompanied by corroborating evidence should be rejected out of hand.

Skipper, there are several different kinds of evidence: eyewitness accounts, direct testimony from memory, corroborating evidence, circumstantial evidence, expert evidence, character testimony, sworn and unsworn statements, hearsay, etc. There are rules and procedures about how they should and should not be put forward, but in the end, a judge or jury is charged with considering the totality of the evidence and whether a burden of proof has been met. There is no requirement that a certain specific kind of evidence be produced and no rigid hierarchy where one kind of evidence always trumps another. In some cases, it's possible to be convicted on hearsay alone. If you are charged with failing to file income tax returns and the only evidence against you is a low-level IRS official saying there is no record of receiving them, that's likely to prevail over your direct testimony that you personally recall sending them all in.

The reason convictions in he said-she said cases are so problematic is not because of the absence or presence of a particular type of evidence, it's because the prosecution must meet a heavy burden of proof and a tie goes to the accused. It's the same in civil defamation cases, albeit with a lower burden. But a senator has no legal burden he or she should or must meet before casting a vote, Bret has no legal standard to meet before rejecting a job applicant (other than not discriminating on prohibited categories) and a citizen is not accountable for what he or she believes after watching televised hearings. Your concerns and misgivings are all reasonable and hardly unique, but I would argue they aren't met by demanding certain kinds of evidence in the abstract or injecting notions of morality into the mix. Surely it would be reasonable to answer you by asking what the content of the evidence is rather than how it could be categorized.

Hey Skipper said...

[Peter:] Skipper, there are several different kinds of evidence: eyewitness accounts, direct testimony from memory, corroborating evidence, circumstantial evidence, expert evidence, character testimony, sworn and unsworn statements, hearsay, etc. There are rules and procedures about how they should and should not be put forward, but in the end, a judge or jury is charged with considering the totality of the evidence and whether a burden of proof has been met.

Thank you for the tutorial. Seriously.

Near as I can tell, Ford's account contained only direct testimony from memory and absolutely nothing else. No eyewitnesses, corroboration, evidence circumstantial or expert, etc. Nothing.

In other words, there is no way to tell whether her account is factual, mistaken, or a deliberate fabrication.

Which ties directly to this: But a senator has no legal burden he or she should or must meet before casting a vote, Bret has no legal standard to meet before rejecting a job applicant (other than not discriminating on prohibited categories) and a citizen is not accountable for what he or she believes after watching televised hearings.

I take it no one need have any qualms about potentially participating in a character assassination.

As I am sure well no, legal and moral are not the same.

Hey Skipper said...
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Hey Skipper said...

As I am sure you well know ...

Hey Skipper said...

[Hey Skipper:] I take it no one need have any qualms about potentially participating in a character assassination.

It seems NBC didn't have any qualms.

Oh, and believe the wymynz.