Top 10 Defenses of Kavanaugh (and What’s Wrong With Them)

Tuesday, October 2nd, 2018 Politics / Writing

1. Innocent Until Proven Guilty

This began mainly with Lindsey Graham, who, before Thursday’s hearings, reminded us of his own experience as a defense attorney. The rebuttal, of course, is that Kavanaugh is not on trial—the committee’s evaluation is founded upon an entirely different and more abstract set of principles. The Senate Judiciary Committee has full discretion to vote however they see fit; the Constitution provides no qualifications for SCOTUS justices and the process has nothing to do with rules of evidence or other elements of criminal investigations.

2. No Proof

Commenters have been apoplectically insisting on this, but it misses the point. There may in fact be no real way of determining beyond a reasonable doubt what happened in that room, but the operative question is the dishonesty and lack of character and judgment with which Kavanaugh has defended himself in the present time, and what this behavior reveals about his temperament and judgment (obviously important for a judge). And, there’s plenty of proof, not just that he lied repeatedly to the Committee, but specifically about the evening in question. (Not to mention the existence at least one eyewitness who has yet to testify under oath, whose appearance before the Committee would obviously address a need for “proof.”)

3. Ford Can’t Remember

(Including variations: Ford was coached; the therapists have planted the memories; she’s exaggerating etc.) This might work were the witness not a professor of psychology (at Palo Alto University) and a research psychologist at the Stanford University School of Medicine, fully willing and able to present her memories within a rock-solid academic framework. The well-founded psychological studies cited by Ford and others demonstrate that traumas of this kind are well-remembered despite delays in their being reported.

4. It’s a Liberal Conspiracy

Clearly the most widespread and deep-rooted—and angriest—meme in use within the Senate chamber and in remarks to reporters. The problem is the timeline (see below): for Ford to have been “put up to this,” as a pawn in a devilish larger game (with Dianne Feinstein and her infamous letter in the Linda Tripp rôle), we would have known about all of this long in advance of the hearings; it’s hardly a tactical advantage to wait until the final week of deliberations.

5. It’s Bad For Boys

Donald Trump Jr. has, of course, dived headfirst into this one: How are we supposed to protect our male progeny in a world where “any man” may be “destroyed” by accusations of rape? [Trump Jr.’s tweet may be the best example of this one.] Only between 2% and 10% of rape reports are determined to be false, and statistics regarding more general harassment claims are not much different.

6. He Was a Kid

The “youthful indiscretion” argument was successfully used by George W. Bush’s father and other supporters in 2000 to defend against recently-unearthed reports of the then-candidate’s 1976 DUI guilty plea (when the “youth” was thirty). The counterargument, of course, is Trayvon Martin, Trump-era detainees, and countless other American who are forced to sacrifice everything up to and including their lives in payment for their behavior as teenagers.

7. It Was a Long Time Ago

Variation on #6, adjusted to address changing morés in society; John Hughes movies etc. (and men’s sarcastic ripostes about how “these days” they’re “not allowed” to make certain remarks to women; grab them etc.). This gets into the broader arguments of the entire #metoo movement, and, therefore, into deep waters, but it’s nevertheless easy to point out that Kavanaugh’s alleged actions that night would be criminal in any decade—and, according to a former Deputy Attorney General of Maryland (where the alleged attack occurred), “attempting a sexual assault with the aid of another person counts as attempted first-degree rape, just as restricting a victim’s breathing to stop her from shouting for help could fairly qualify as first-degree assault. Both are felonies with no statute of limitations in Maryland.”

8. He’s Been an Outstanding Citizen/Lawyer Ever Since

Maybe, if you don’t look too hard at the rôles he played, not just in Ken Starr’s odious Whitewater/Lewinski impeachment proceedings, but during the 2000 Florida recount (and its famous “Brooks Brothers Riot”). In other words, Kavanaugh is a past master at precisely the sort of formalized smear campaign/character assassination that he’s insisting he’s the victim of, today.

9. This Was Sprung on Senators at the Last Minute

The timeline was dictated by Ford’s wish to remain anonymous—her original complaints came to Senator Feinstein long before Kavanaugh was even the final White House choice as nominee. (All of this was exhaustively covered in her testimony.)

10. We’re Politicizing It

This is the most directly philosophical and abstract argument for Kavanaugh’s confirmation and the hardest to refute, since the question of how one does or not “politicize” what’s been tacitly understood to be an implicitly political process since at least the days of Oliver Wendell Holmes remains unclear. The low-hanging-fruit rebuttal is, of course, the Republican-controlled Senate’s refusal to confirm Merrick Garland, which is clearly the most blatantly political treatment of a SCOTUS nominee in history—Robert Bork’s insistence that his 1987 rejection was “political” did not get taken seriously at the time (Senator John Warner’s Senate-floor speech declaring President Reagan’s statement that the opposition to Judge Bork was a ”lynch mob” was ”unbecoming the office of the Presidency” is, of course, quaint by Trump-era standards).

Bonus Argument: I Don’t Care; I Just Want Him On The Court

As the proceedings continue to drag out, this increasingly frantic position gains ground, being impulsively blurted out more and more—but the rebuttal is, as with #10, philosophical. Expediency, hypocrisy, realpolitik and moral/ethical dilemmae are of course no strangers to politics, but maybe the best response to this one is simply to let it stand, as an emblematic symbol of just how far the principles of American governance have fallen in this dark and turbulent era.

No Concessions

Monday, April 23rd, 2018 Politics

I keep making the same point (here and elsewhere) and not getting any traction, which surprises me: this is the main reason I’m a gun abolitionist. It’s not that I don’t countenance any rebuttals about hunting or self-defense. (I don’t, actually, but that’s beside the point.) It’s that I don’t understand why we’re not allowed to take an extreme position, when the other side does nothing but.

Every time I say “Get rid of the guns” I’m strongly cautioned about how, No, we can’t be so extreme; we have to compromise because lots of good people have firearms and are part of gun “culture” and we mustn’t insult them or risk upsetting them etc….and I say, Why the hell not? Nobody on the NRA side’s worried about upsetting us (or, you know, shooting us) and none of them have the slightest compunctions about using the most insane apocalyptic rhetoric, calling us enemies of America and worse, and absolutely insisting on the most extreme possible position (saying that any encroachment on anyone’s rights to guns in any situation is nothing less than a fundamental Constitutional crime against the flag) no matter who gets insulted or, you know, shot dead.

This is the usual liberal “bring a knife to a gunfight” position. It’s how Obama lost all that ground. “Let’s capitulate!” is always our first response. I hate this. Why can’t we be the extremists? No guns, anywhere, ever. Start from there—it’s a vastly more reasonable position than anything they’re saying (given 2nd Amendment debates etc.)—and then let’s negotiate.

This is what happened with cigarettes, too: the other side had a “give zero ground” tactic. They never settled or lost any civil or criminal suits, ever. They refused to acknowledge that nicotine was addictive (even after finally submitting to those Surgeon General’s warning). Nothing changed until the Brown & Williamson suits in the late ’nineties when they folded…slightly…and pulled ads from magazines and got rid of the billboards and made some other slight concessions. (And the activists who made the tobacco lobby blink, did it by using sweeping rhetoric, saying that the cigarette companies were “guilty of perpetrating the biggest fraud on the public in American history”—they didn’t start by reassuring everyone that “nobody’s against cigarettes” or attempt to prove their “bona fides” by saying they themselves smoked or whatever.)

This is the same thing: we’re dealing with fanatical extremists with lots of money who play for keeps and don’t give up any ground at all. So of course, we start making concessions, appeasing them more and more while they continue to spit on us. It’s the liberal way.

Bring On Pence

Sunday, May 21st, 2017 Politics / Writing


Should Mike Pence become president, the Left will surely lead us in a national chorus of “Whew! Back to normal.” Correct? After all, our friends in the Democratic party have been saying for many months that President Trump is not normal, that he is uniquely unfit for office, that his brand of mendaciousness, volatility, poor character, and immaturity have no precedent in the Oval Office, that he is a Nazi sympathizer and even a fascist, that he is an extremist who exists outside the bounds of ordinary political disagreement.

Kyle Smith in National Review Online
(with gratitude to Yastreblyansky, who discusses the article here)

To believe in America is to believe in democracy, and to believe in democracy is to believe in democratic systems, meaning, constitutional systems (including all the correctional mechanisms—the creation and enaction of laws vs. the voters’ referenda and all of that). It’s a sliding scale because any system can be gamed, its weaknesses found and exploited over time—whether it’s courtroom rules (where, say, computers allow impossibly fast retrieval of case law for objections, or where software-based or audio-recorded testimony can challenge the accuracy of stenographic court reporting) or basketball rules (where, over decades, the arrival of taller and taller players changes the timing of play so completely that the “shot clocks” and other new constraints have to evolve), the idea is that if you’re going to do the thing at all, you have to stick with the template you started with. (The taller basketball players aren’t the only biological change that’s relevant to how systems work—increasing human longevity makes “lifetime appointments” mean something very different now than it did 241 years ago, so those rules may eventually have to change, too.)

Along that sliding scale, messing with voting machines or voter rolls, or taking advantage of bad ballots (as in Florida in 2000) is not OK; breaking into your opponents’ campaign headquarters is not OK (as in Washington DC in 1972). Gerrymandering districts or refusing to hold confirmation hearings on a Supreme Court nominee are on the edge—technically, that’s working within the system, but it’s still dirty pool. And, in general, technology changes it all, as with my previous examples of how Fascism or just bad democracy results from media shifts—Leni Reifenstahl or Joseph Goebbels or Roger Ailes getting monstrous results from film, radio and television, or (just to argue the other way) local Democratic candidates getting “unfair” boosts in funding across state lines thanks to DailyKos.

So, Pence is not “as ‘abnormal’ [or, illegitimate] as Trump” (as has been argued). There are just too many things that are fundamentally wrong with Trump’s election—some of which, as I’m saying above, barely skate by as “legitimate” (not just the Electoral College but the Comey letter and the tweetstorms) but so much of which involves hacked email servers and corrupt self-dealing in international business contexts and unprecedented foreign interference and other elements that are totally beyond the pale; that have nothing to do with how the Founding Fathers set the thing up or how it carefully nurtured its own painstakingly slow evolution over the centuries. (I’m not making an “Originalist” argument—at least, I’m pretty sure I’m not; the parsing of 18th Century language through a modern lens altered by shifting social values is different from the obliteration of 18th century physical mechanisms by computers and cable televisions and international money-laundering schemes.)

Mike Pence is evil, as Yastreblyansky argues, but he’s a doctrinaire politician; an elected official legitimately vetted by the systems of our democracy; and (perhaps more important) a man who (like Gerald Ford) could never have gotten onto the national stage or into the Oval Office by himself. (I would never say of Pence that he is “not my President”—as the Right did of Obama, for their own reasons involving crackpot racist theories of his imaginary foreign birth or “allegiance” to the Muslim world, which Trump first came to the national stage by exploiting and promoting.)

We’re on the edge of serious darkness and chaos with Trump. Too many of our basic principles of democratic rule are rattling and straining under dangerous pressure, because of Reality Television and microtargeting and hacked computers. And, since I’m being called out by The National Review (as a self-appointed representative of “the Left”), I have to hold my head up high and say, Yes, if Mike Pence becomes President I will lead “a national chorus of ‘Whew! Back to normal’” —I will continue to believe what I’ve always believed and stand by what I’ve always stood by as a patriotic American. I will repeat the Gerald Ford lines about how “our system works—this is a government of laws and not of men” and I will watch lame-duck Pence and his party be decimated in the midterms as the basic, cherished wheels of American democracy grind away the last remnants of this horrible freak mistake.