WHY THE KAVANAUGH CONTROVERSY IS SO IMPORTANT

WHY THIS IS SO IMPORTANT. To the dismay or boredom of many, I have spend more time on various aspects of the Kavanaugh controversy. I'm an ethicist, not a political commentator, why have I been so passionate about the issues.

Though the political implications are enormous and unavoidable, this is not political for me. It's a matter of ethics, logic and the need for objectivity.

Of course I know to the extent my opinions align with one political position or another they are quickly categorized as pro or con and weighed or dismissed accordingly. That's frustrating.

Sure I have and I'm not shy about expressing my opinions but like a judge pledged to be neutral before reaching a decision I have struggled to be objective. For what it's worth, I am a lifelong independent who has never registered with either party. Every thought I have expressed on this matter would be the same if the political implications were reversed. So I hope my observations will generate more light than heat.

THE SWAMP: WE HAVE TO TRANSCEND THE POLITICAL DIVERSION AND DECEPTIONS

I am disgusted at the posturing and manipulation of Democrats to block the nomination and pretend they are only concerned with the truth. I believe the letter was leaked as a last-ditch effort to derail the nomination. I am equally disgusted by the posturing and manipulation of the Republicans forcing an artificial deadline for perceived political advantage and rendering all but one or two blind or deaf to serious concerns that might cause them to believe another equally conservative choice would be less divisive and, therefore, better for the country. Both sides only want the 'truths" that support their political agenda. I have no doubt that virtually all would take diametrically opposite positions if the situation was reversed.

This is politics at its worst, BUT WE CAN’T LET THESE MOTIVES DETRACT US FROM THE RESPONSIBILITY TO DEAL WITH ISSUES ARE HUGE BOTH FOR THE FUTURE OF THE SUPREME COURT AND FOR THE WAY WE SHOULD DEALING WITH ACCUSATIONS OF SEXUAL ASSAULT AND A COMMON DISMISSIVE AND DEGRADING ATTITUDE TOWARD GIRLS AND WOMEN.

Viewing the facts, allegations and inferences concerning Kavanaugh's nomination and the testimony of Prof. Blasey-Ford through a political lens distorts what we accept as facts and what we dismiss as unfounded or uncorroborated allegations. Worse, it blinds us to the social implications of the message sent by the process and outcome. The fact that the new FBI investigation has changed no minds is no surprise. This is confirmation bias in neon letters.

First lets isolate the two major issues:

1) Whether Dr. Ford's testimony, Kavanaugh's denial and his aggressive accusatory response and the tidal wave of supporting and refuting sworn statements and public interviews justify denial of the nomination, and

2) Whether the way Prof. Ford's allegations have been handled by the Senate, media and public has been fair and wise, given its implications as to the high cost of coming forward with sexual allegations in the absence of conclusive proof.

SHOULD KAVANAUGH BE GIVEN A LIFETIME APPOINTMENT TO THE SUPREME COURT?

On the first issue, it's critical to decide whether you accept the job qualification theory of assessing the negative evidence against Judge Kavanaugh and the amount of proof needed to persuade a Senator to disqualify him for the position of Supreme Court Justice or the alternative - he's innocent until proven guilty theory therefore the evidence must be ignored unless unless the accuser offers convincing proof (by either the criminal beyond a reasonable doubt burden or the civil case - preponderance of the evidence (more probable than not).

Your choice as to the burden ought to be dictated not by the outcome you want, but by your belief as to which standard should be applied in all similar instances regardless of the outcome (philosopher John Rawls called this the “veil of ignorance” - a just decision should not be affected by who wins or loses, but by immutable principles of logic and equity).

(I have written extensively on the burden of proof issues, the definition of evidence and my view that this should be treated as a job interview and that the higher burdens are inappropriate and would be, in the long run, socially counter-productive if employers or voters were morally responsible to ignore evidence unless they are certain. See https://whatwillmatter.com/2018/09/a-serious-tutorial-on-evidence-and-proof/)

To apply Rawl's veil of ignorance to guarantee impartiality, let's take all the facts we know exactly as we know them and transport the controversy to a different context - let's say hiring a superintendent of schools or the executive director of a YMCA. Take the politics out. How would you decide knowing that you are setting precedent? This is not a rhetorical question it is real - please answer it, at least in your head.

WHAT ABOUT HIS TEMPERAMENT OR BIAS?

The issue of Judge Kavanaugh’s suitability has now been challenged by a wholly separate challenge questioning his judicial temperament and political bias. Yes there is political motivation behind many of the arguments but, still the issue is real and must be addressed.

I believe his angry, highly emotional and accusatory tone in his last round of testimony was clearly inappropriate to the context. IT WASN’T JUST THE ANGER, IT WAS THE BAD JUDGMENT and disrespect for example asking a senator whether she had blacked out and a pattern of refusing to directly answer questions. Had Hillary Clinton or any other nominee for a major job reacted similarly they would have been disqualified outright.

Certainly, if this was a job interview I would send the applicant packing. I can assure you after serving 20 years as a law professor, had any applicant for a faculty position reflected even a fraction of this defensiveness and offensiveness he or she would have been soundly rejected.

On the other hand, we have no indication that this anger, fueled by righteous indignation concerning the way he’s been treated, has ever impacted his behavior or judgment in a decade or more of acting as a judge. It’s not likely any legal issue before him would produce that sort of emotional reaction and I can understand a decision to cut him slack on this and give him a pass.

The bias issue is much more troublesome. His accusations of a massive and insidious conspiracy and antipathy for Democrats makes me doubt that he would be judicially impartial on any number of politically-charged issues he might face as a Supreme Court justice – redistricting, campaign financing, challenges to presidential executive power, etc.

In a different context, where the political adversaries weren’t so dug in, I can’t conceive of a situation where a nominee would not have withdrawn in the face of all these concerns including a letter signed by about 1000 law professors declaring him unqualified and the statement of the highly reserved just-retired former Justice Kennedy who just publicly declared that his testimony should be disqualifying.

HAVE BE ADVANCED ANY SINCE ANITA HILL?

With the tremendous progress dealing with sexual abusers embodied in the #MeToo movement it would be tempting to conclude that society and public officials would no longer tolerate disregarding or demeaning a woman’s accusations – but that’s really what is happening here.

I confess that my interest in the last questioned is greatly heightened by the fact that I am the father of 5 unmarried children including three daughters and the brother of six sisters, at least on of who was molested by a relative (and no one believed her).

Many Kavanaugh supporters who have been kind and sympathetic toward Ms. Ford have become implicit accusers advancing the illogical position that they found her testimony highly credible, that they believe “something” happened, but they don’t believe the part of her testimony where she said she is 100% certain Kavanaugh was her attacker. The unavoidable conclusion is that Ford was either lying or delusional about the single most critical aspect of her testimony. You can’t say she is wrong without dishonoring her testimony. One of them is lying.

What are the moral, practical and social implications of subjecting a person who claims to be a victim of unwitnessed sexual abuse (other than the victims and alleged perpetrators) to a high burden to offer a substantial amount of evidence (beyond her own sworn eye-witness testimony) to PROVE HER VICTIMHOOD?

We have to view this question in the context of the frequent and likely situation where sexual misconduct occurs with no outside witnesses or videos These often turn into testimonial contests where the question is who do you believe?

IT’S IMPORTANT TO KNOW THAT THE LAW IN MOST STATES EXPLICITLY STATES THAT THE TESTIMONY OF A SINGLE WITNESS CAN ESTABLISH ANY FACT IF BELIEVED

Normally, both parties can and do look for corroborating evidence that makes their version more likely - prior consistent statements, verifiable details, overall demeanor and credibility, contemporary reports, lie detector results, alibis.

FORD’S TESTIMONY WAS CORROBORATED.

Whether the evidence offered to support Ms. Ford’s accusation and explanation is sufficient to carry the personal burden of proof you require, we must put to rest the clearly FALSE CLAIM that there is no corroboration. This not just a matter of personal opinion; it’s a matter of settled law.

As a former law professor, I confidently assert there is certainly more than enough to uphold a civil verdict should one be rendered. For example: 1) the lack of motive to lie and the strong motive not to subject oneself to scrutiny and criticism if it is not true, 2) the positive polygraph test, 3) the party culture of Kavanagh’s friends and school (even his leadership in that culture) increasing the probability of such a party and assault, 4) undisputed evidence of Kavanaugh’s drinking to the point of intoxication, 5) contemporaneous yearbook statements and letters by Kavanaugh about his heavy drinking (supported by roommates in his college years unchallenged good character, 6) his demeaning and disrespectful statements about a girl his classmates claimed was an easy “date” making the alleged behavior somewhat more likely, 7) the long-term effect of the incident on her life. 8) the sworn affidavits of two other women alleging witnessed behavior making the alleged attack more plausible and possible. None o this is conclusive but cumulatively it would support a judgment against Kavanaugh.

The bottom line is the burden placed on Ms. Ford and Anita Hill defy logic and common sense and perpetuate a system rigged against the woman. How would a woman molested or attacked in private without witnesses of physical evidence seek accountability for the attacker unless we were willing to truly listen, assess credibility, motive and other circumstantial evidence that we believe her and that’s enough. Demanding proof beyond credible testimony in some cases simply guarantees that abusers escape accountability.

WHAT ABOUT FALSE ALLEGATIONS AND DANGER TO MEN?

To be sure, some accusations are false but in virtually every case there is meaningful discrediting evidence of malice, other self-serving motive or mental incapacity. Most of these cases arise in complex and murky domestic disputes. I can’t think of a single prominent instance in a situation like this where a false accusation was successful against an innocent man.

WHY THIS IS SO UPSETTING.

I recently came across this post from an unidentified author.

"I think I understand now why I am so upset about this case. I tried to sleep last night and all I kept thinking is why are they trying to "ram him" through despite the majority of the country and the majority of women saying "no," and "please stop," and "wait".... and in that very question I found the answer. It was so simple and so alarming.

“They are literally playing out on the national stage and in real time what it feels like to be overpowered. They won't take no for an answer. They won't listen or slow down. They won't stop. The more we say no, the more angry they get. The more we ask them to stop, the more entitled they feel. This is, I think, is what is affecting me and countless other women.

“We are being overpowered despite us being in the majority and asking rightfully that they stop or wait. They are saying no and the more we beg, the more aggressive they are getting. Until finally, they plan on "ramming" through his nomination while we are supposed to just take it.

This is what is affecting me. This is - I think - what is affecting most women. This overpowering, entitled and demeaning attack on our body politic.

“Us: Please stop

Them: No

Us: Wait

Them: No

Us: STOP

Them: NOOOOOOOOO

Us: Crying

Them: Angry, yelling, ramming”

COMMENTS?