Kavanaugh-Ford: A widening societal division on justice | A Pragmatist's Take | Douglas Moran | Palo Alto Online |


Local Blogs

By Douglas Moran

Kavanaugh-Ford: A widening societal division on justice

Uploaded: Sep 30, 2018

The public's reactions to Prof. Ford's accusations of Judge Kavanaugh highlighted an increasing division in what we as a society consider proper conduct in dealing with accusations and providing just treatment. Being able to agree on the principles of what is fair is essential to a functioning society, and I fear we are rapidly losing that.

I suspect that most of you have received your news from what has become a fragmented and partisan the media, and thus it was unsurprising that so many public comments were blindly partisan. For example, some of Kavanaugh's supporters were making arguments that he had already rejected, even denounced (example, "Boys will be boys").

It is discouraging that I felt the need to write these basics because not so long ago, I would not even considered people needing a prompt to consider what was happening. These basics should be above partisanship, but now seem to be easily discarded by many to the dictates of partisanship.

Note: The truth and credibility of this particular situation is off-topic here. A useful comment would require expertise in not just in the general field of psychology, but in the specialty of how memories are affected by trauma and the extended passage of time. It would also require personal knowledge of the environment of elite, private, single-sex prep schools in the Washington DC area in the early 1980s. I suspect that none of you readers meet these criteria, and even Prof. Ford doesn't meet the first one.

Formal vs informal justice systems: same basics:
Recognize that an unpopular law tends to be not just an ineffective law, but a bad law. Laws should be little more than a codification of what the public already accepts as being reasonable and just, with the formalization meant to provide consistency in its application. The formal justice system should not differ from the principles that the public use in everyday life.

Collective guilt, punishment, penalties:
The rejection of collective punishment goes back to ancient civilizations, such as seen in the story of the ^destruction of Sodom and Gomorrah^ (Genesis 18:13-32). However, through most of history, this seems to be applied only in the case of your own people, not enemies. ^Article 33 of the 1949 Geneva Conventions^ declared to be war crimes the collective penalties, reprisals, intimidation, terrorism ... against civilian populations. For example, before this it was common for occupying forces to execute civilians in response to sabotage, snipers and other guerilla activity.

For me and many others on the non-Left, it was deeply disturbing to hear so very many Democrats, "Progressives", ... talking in collectivist terms, saying that they or friends had a similar experience with some other male at a different time and place and therefore Kavanaugh must have done what Ford accused him of. How would you respond to a "They're all like that" statement if it were about a racial group?
Remember, I have said that I know enough to know that I don't know enough to have a valid opinion on the accusation, and I request similar self-awareness from you.

Science is one of the pillars of our civilization because it defines our most basic assumptions about how the world works -- no magic, no witchcraft,(foot#1) no micro-managing deity -- and thus how we approach the acquisition of knowledge.(foot#2) And this in turn is essential to our being able to have meaningful discussions. From an earlier time: "Everyone is entitled to their own opinions, but they are not entitled to their own facts." (Daniel Patrick Moynihan). While the phrase "your own truth" pops up at various times, this abomination appears to be restricted to inspirational speakers, advocates of divisiveness, and academics specializing in reality-distortion fields. Hoping it stays that way.

The phrase "different ways of knowing" traditionally included sensory perception (direct knowledge), memory (existing knowledge), language (knowledge from others) and reason (new knowledge from existing). Some current uses of this term also include faith, emotion, intuition and imagination.

The call to believe was the dominant theme among those supporting Ford and/or opposing Kavanaugh, with the two variations being extremely difficult to distinguish. I hope that this difficulty means that those calls were simply rationalizations of partisanship, and not a massive shift in how we evaluate accusations and other claims. However, if it is just a rationalization, that signals a weakening commitment to basic principles of our society.

Recall that the Cheney-Bush administration took the US into the Iraq War based on their beliefs, not only without credible evidence, but contrary to available evidence. Their supposed evidence was a combination of false confessions (obtained by torture), discredited agents, disproven claims ... This is not an invitation to discuss, but merely a reminder of how disastrous substituting beliefs for evidence can be.

Skepticism of witnesses:
Formal research and widespread experience has found witness testimony to be "notoriously unreliable", and therefore requiring either supporting evidence or careful examination. I found it disturbing that items that should have caused people to go "Whoa!" and re-evaluation their position didn't do that.

For example, when it was revealed that Ford had rejected a meeting here with investigators from the Senate Committee but later demanded an FBI investigation, you should have asked yourself if she was supporting the Democrats goal of significantly delaying the decision. If so, did this cast doubts on her accusation? You might say "No", that she was encouraged to do this by her lawyers and advisors who came onboard long after the accusation was registered. But do you have any evidence of that? If not, how do you assign probabilities to the conflicting scenarios?
Note: It later emerged that Ford's lawyers may have rejected the offer without consulting her, but I'm asking you to focus on whether the earlier situation triggered your skepticism.
Note: The Republicans' decision to deny a hearing to Obama's Supreme Court nominee Merrick Garland was myopic and displayed that they had no interest in governing, but only in power. Ditto for a wide range of other nominees during the Obama presidency. Same for the Democrats' delaying tactics here. However, while the Republicans damaged nominees by putting their lives on hold through a protracted confirmation process, I don't remember them indulging in the level of character and reputation destruction mounted by the Democrats.

Similarly, when Ford falsely claimed she was afraid to fly, she had become part of delaying the hearings. Think about whether and how this affected your thinking, and that of those around you.

Rejecting or ignoring credible causes for skepticism sends a definite message: You have decided to believe the claim and don't care about its truth. This in turn licenses others to infer that you don't believe that the claim is true (but not that you believe the claim is false).

Presumption of innocence is a foundation of the system of law that we inherited from the British. As Senator Kamala Harris demonstrated by berating Kavanaugh to enumerate things he didn't know, this is an important counter to prosecutorial misconduct, abuse and malice. (Aside: Harris and Senator Cory "not Spartacus" Booker made such negative impressions that I heard Democrats say that if either were to be the 2020 Democratic nominee for President, they would vote for Trump).

Even in judicial systems where the accused have to prove their innocence, a mere accusation does not meet the threshold for a trial. However, there are the aberrations, such as in totalitarian states (most notably Communist ones). And witchcraft trials. It surprised me that Democrats didn't seem to recognize the import of the references to witch-hunts in discussions of the Kavanaugh hearings.

^Blackstone's Formulation^: "It is better that ten guilty persons escape than that one innocent suffer."
The particular statement comes from the British, but the moral principle can be found in ancient times, also in the Genesis story of the destruction of Sodom and Gomorrah cited above. However, Democrats have been increasingly edging away from this. I put the watershed moment as the 2011 "Dear Colleagues" letter from the Obama Department of Education to colleges on campus rape, assault, ... It strongly pushed colleges to increase convictions at the expense of providing justice, and produced systems that so violate the American sense of due process that actual courts have labeled them "^Kangaroo Courts^". The defenders of this system claimed that punishing the innocent was essential because to deny questionable and false accusations would discourage actual victims from coming forward.(foot#3) Now we seem to be besieged by Red Queen wannabes shouting their version of "Sentence first--verdict afterwards" (Lewis Carroll's Alice in Wonderland).

Conservatives have a different problem in this area. Their belief in certain institutions leads them to ignore, even cover-up, their massive failings and outright crimes. For example, the many scandals of the Catholic Church. The police and courts are another common example: When convincing evidence has turned up that there has been a wrongful conviction, Republicans will often battle for years to prevent that evidence being heard in court. Their rationale is the feelings of the victim and victim's family family need "closure", that is, their feelings are more important than guilt and innocence. Yet they will turn around and blast Democrats for "Feelings over facts" without recognizing the hypocrisy.

After the past three years, I am not surprised to see that the Democratic Party leadership, and many visible Democrats, do not understand that the anger is not just from Republicans and other conservatives, but also from the former center-left. For many, this is about some of the most fundamental principles underlying civil society. Then there were the headlines and stories in the Democrat-aligned media on Friday that seemed designed to poured gasoline on the fire.

As to the Republican senators and other leaders, some of them may have mouthed the right phrases, but none seemed to have any enthusiasm for the principles themselves, but only for their immediate tactical use.

Conclusion / Reminder:
Remember that this is not, not, not about the accusation or the Senate hearings themselves, but rather about how the public has responded to the situation, and what that might say about attitudes about how such situations should be handled.

Preempting an anticipated accusation:
No, I do not support Judge Kavanaugh. When he was nominated, I read overviews and my impression was that he was too accommodating to corporations, executive power and the surveillance state, and that he overstretched Freedom of Speech to benefit corporations.(foot#4) But then how different is that from California's senators?

1. Witchcraft vs science:
Infamous ^video^-- which I have cited in earlier blogs -- from the University of Cape Town in South Africa.It includes "They believe that through the magic -- you call it black magic, they call it witchcraft -- you are able to send lightning to strike someone.Can you explain that scientifically because it’s something that happens?"
Other copies of the video can be found under tag #ScienceMustFall and at ^Science Must Fall?^ (meme explanation).

2. Science: Our belief about how our world works:
Consider this characterization of the ^Etruscans^by the Roman philosopher Seneca writing centuries later: "This is the difference between us Romans and the Etruscans:We believe that lightning is caused by clouds colliding,whereas they believe that clouds collide in order to create lightning.Since they attribute everything to gods,they are led to believe not that events have a meaning because they have happened,but that they happen in order to express a meaning."
Some speculate that their belief system played a significant role in their downfall by distorting how they responded to events, even causing decision paralysis.

3. Statistics on false rape accusations:
You will often see claims that these are exceedingly rare, 3% being the most common number cited.This comes from a study that used an exceedingly high threshold for what counted as a false accusation:The accuser had to formally confessed this to the authorities.Convincing evidence such as text messages, credible witness, ... didn't qualify.You might call this technique "Proof by definition"and treat it as a case of the logical fallacy ^Begging the Question^.

4. Overstretching Freedom of Speech to benefit corporations:
Such over-reach is not unprecedented:In the case of Burwell v Hobby Lobby Stores, Inc,the Supreme Court decision (5-4) seemed to be based on the assumptions that corporations have religious beliefs independent of their owners and stockholders -- a basic purpose of a corporation is to legally separate it from the lives of those real people.

An ^abbreviated index by topic and chronologically^ is available.

----Boilerplate on Commenting----
The ^Guidelines^ for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
A slur is not an argument. Neither are other forms of vilification of other participants.

If you behave like a ^Troll^, do not waste your time protesting when you get treated like one.