Clarence Thomas

This PBS documentary is only available to watch for free for a couple more days:

"Created Equal: Clarence Thomas in His Own Words"

Senate beachhead

https://www.nationalreview.com/2018/11/republican-senate-control-frightens-democrats/

The Kavanaugh effect

https://www.washingtonexaminer.com/opinion/michael-barone-the-kavanaugh-effect-was-senate-democrats-undoing

Credible testimony

https://www.proginosko.com/2018/10/credible-testimony/#more-3493

Punishment for abortion

As of Saturday night, just hours after the confirmation vote, Brett Kavanaugh has been sworn in as a Justice of the Supreme Court. It's not clear yet that he would vote to overturn Roe vs Wade (and turn the decision about abortion laws over to the states), but we can be certain that there will be howling about punishment for abortion, back-alley coat hanger abortions, etc.

There won't likely be any jail time at all for having an abortion, anywhere, but one thing we should do is to spread the word that for each person who procures an abortion, the thought that "I killed a living, growing human child for my own convenience" should be impressed upon them as a kind of life sentence. If any punishment is to be imposed, each person who participates in getting an abortion should at least live with that thought.

The Case against Kavanaugh Is Collapsing

https://www.nationalreview.com/2018/10/brett-kavanaugh-case-against-nominee-collapsing/

A Quick Note on the Kavanaugh Accusation

https://www.proginosko.com/2018/09/a-quick-note-on-the-kavanaugh-accusation/

Glazed

A brief exchange I had with Robert Gagnon on Facebook:

Hays 

I agree with you that Kavanaugh may well be lowballing his party boy activities in high school and college. But I'm puzzled by why you (and some others) expect him to load a revolver and hand it to his enemies. It's one thing to evade fair questions, but another thing to evade unfair questions. Ever since Bork, who was punished for giving good honest answers, confirmation hearings have been a poker game in which nominees bluff their way through the proceedings by giving slippery answers to tripwire questions. Unfortunate, but realistically, do they have a duty to step on a land mine in plain view? Rather than hold that against the nominee, why not hold that against unscrupulous interrogators?

Gagnon

It's the repeated drinking to excess that makes possible (I didn't say likely) the sexual assault allegations."

Hays

True, but inebriation is a wild card in many respects. It makes is more than possible that the sexual encounter (if any) is consensual. It makes it more than possible than participants have clouded recollections about what happened. So that cuts against the accuser as well as the accused. The role of alcohol has a mutually canceling effect.

Gagnon

I don't agree that it has a mutually canceling effect for alleged perpetrator and alleged victim.

Hays

Why not? Rape or attempted rape requires nonconsent. If both parties are intoxicated, that removes inhibition If both parties are intoxicated, who's to say which one took the initiative? Assault or seduction? Not to mention that it renders the memories of both participants unreliable.

https://www.realclearinvestigations.com/articles/2018/09/27/blasey_ford_yearbooks.html

Gagnon 

The suspicion that someone might have attempted to rape another in a state of heavy intoxication is not comparable to the suspicion that someone allowed another to have sex with her.

Hays 

What makes one suspicion more reasonable than another if there's no presumption that both were sober? What's the justification for the lopsided suspicion?

As you know, this comes up in debates over affirmative consent. If both are drunk, there's no presumption that one party was forcing himself on the other party, or vice versa.

Gagnon 

I'm not saying that the suspicion is necessarily greater but rather that what one is suspicious of is greater.

Hays

But mutual intoxication renders that imponderable.

Why take the risk?

Sorry to keep posting on Kavanaugh, but the controversy opens up a range of ethical issues over and above Kavanaugh. 

One objection I've run across goes something like this: Kavanaugh isn't the only fish in the sea. Trump could withdraw Kavanaugh (a damaged candidate) and nominate another candidate with a conservative judicial philosophy. This isn't a criminal trial where the defendant faces imprisonment if convicted. No one has a right to be a Supreme Court Justice. Why take the risk of elevating an attempted rapist to the Supreme Court? 

That's a good question. What's the answer?

i) It sets a terrible precedent to disqualify someone based on unverified allegations of wrongdoing.

ii) Secular progressives are bent on punishing political opponents or ideological dissenters with loss of employment or even imprisonment. 

iii) Democrats are hoping to kill this nomination and play out the clock so that Trump won't get a second chance. Indeed, they're using the process to poison voters agains the GOP come November. 

iv) If, moreover, a nominee can be derailed by leveling an unverified allegation, then Democrats will repeat that tactic for every GOP nominee. 

v) There's always the risk that a political candidate or presidential nominee has undiscovered skeletons on his closet. For all we know, nominees generally may have done something disqualifying but we have no evidence of wrongdoing. Ford presents herself as a reluctant accuser. Suppose she never came forward.  

Suppose a judge accepted a bribe. The judge is nominated to the Supreme court. But suppose no witness comes forward. Indeed, we wouldn't expect a witness to accuse him if the accuser is the same person who bribed him. It's a crime to offer a bribe as well as a crime to accept a bribe, so there's an element of mutual blackmail. The witness can only accuse the judge on pain of self-incrimination. So there's always the risk that we might be voting for a candidate or nominee whom we'd vote down if incriminating evidence were to surface. That hypothetical would preemptively disqualify every nominee. We couldn't risk voting for anyone, since there's always the abstract possibility that they're hiding something that ought to bar debar them.  

vi) In addition, there's a difference between a merely hypothetical risk and having good evidence that the individual in question is actually compromised.  

vii) Finally, some risks are riskier than others. Taking giving a Muslim-American a high security clearance. So it depends in part on the potential for harm. 

Judicial temperament

https://www.washingtonexaminer.com/opinion/michael-barone-its-okay-for-judges-to-be-angry

Entrapment

I've see a few Christians object to Kavanaugh's confirmation, not because they think his youthful indiscretions are disqualifying, but because he lied about them. I'm discussing this because it raises some general ethical issues over and above the Kavanaugh psychodrama. 

A terminological clarification before I proceed. I use "disqualifying" as shorthand for conduct deemed to disqualify someone from certain types of employment. Although "youthful indiscretion" is sometimes a euphemism, I'm using it, not in a minimizing sense, but to classify misbehavior that's not deemed to be serious enough to be disqualifying. Misbehavior that's disqualifying is more serious than a youthful indiscretion. 

For people who take the aforesaid position, I have the following question: 

If a youthful indiscretion isn't disqualifying, why is lying about a youthful indiscretion disqualifying? 

Let's consider some possibilities:

1. Perhaps they think lying is intrinsically wrong. Therefore, while the youthful indiscretion is insufficient to be disqualifying, lying in itself is disqualifying. 

i) On that view, even if the individual committed no youthful indiscretions whatsoever, lying would preemptively disqualify him from further consideration.

ii) Although I don't have any scientific stats at my fingertips, it's my impression that most people lie some of the time. If lying is permanently disqualifying, that would result in massive unemployment. Or is it only disqualifying for certain kinds of jobs? If so, what kinds of jobs? 

2. Perhaps they think that while the youthful indiscretion is insufficiently disqualifying in its own right, and lying is insufficiently disqualifying in its own right, the combination crosses a threshold. 

3. Does lying automatically mean a person is dishonest? Some people are habitual liars. Other people are truthful if you don't threaten their family or livelihood. Many people will lie in predictable situations. Whether lying is always wrong is different from whether lying makes the liar generally dishonest or untrustworthy. Those are separate issues.

Sometimes people can get into trouble for doing the right thing. Suppose I know that someone won't cover for me if I'm at risk of getting into trouble for doing the right thing? Paradoxically, his honestly would make him untrustworthy in that situation. I know he won't lie to protect me, even though I did nothing wrong. 

Once again, that doesn't settle the question of whether lying is ever morally permissible (or even obligatory). But it does complicate the issue of what make someone a friend you can rely on in pinch. If they're so honest that they'd expose you to harm for doing the right thing, are they friendship material?

4. Suppose a person is questioned under oath as part of a background check. Supposed they're asked if they ever engaged in sexting. Suppose they did engage in sexting when they were a teenager, but they outgrew that. But the question poses a dilemma:

i) If, on the one hand, they lie, that might be a crime. If, on the other hand, they tell the truth, that might be confessing to a crime. On the one hand they risk perjury while on the other hand they risk self-incrimination.

ii) Suppose it wasn't a crime. Even so, that's asking them to divulge embarrassing information that could still be used against them. And it may be completely irrelevant to the job they're seeking. 

Why should they be required to answer unfair questions on pain of perjury? Why should they be punished for lying in response to a question that the investigator had no right to ask in the first place? Why should they be disqualified for lying when the question is unfair and harmful to them, while there's nothing in their past conduct that will be harmful to others in the future? 

Even–or especially–if you think lying is intrinsically wrong, then entrapment is wrong. Pushing someone to the limit, then blaming them for the situation you put them in. They wouldn't do that if you didn't corner them. If you induce them to lie, who's at fault? They wouldn't lie if you didn't ask them unfair, damaging questions.

I'm not talking about someone who already did something gravely wrong, and you're questioning them to find out more. Rather, I'm talking about a scenario in which the interrogation itself is threatening to the respondent, quite apart from past behavior. 

Kafka now

I appreciate how Democrats keep proving that they can't be trusted with power. Their Kafkaesque standard that the accused has a duty to invite a gov't agency to investigate him. I keep reading the witless claim that an innocent person has nothing to fear from a criminal investigation. Are these people even thinking?

An innocent person is assuming a gratuitous risk if he requests a criminal investigation. The risk that he will be imprisoned on a process crime. Suppose the interrogators ask him prying questions it would be embarrassing to answer. Not about criminal behavior, but just embarrassing behavior. Suppose he lies to avoid the humiliation. Now they will nail him for perjury, even though it was none of their business to ask him questions about embarrassing, but legal behavior. 

In addition, he doesn't even have to lie to be indicted for perjury. The same agency that interrogates him determines if his answers are truthful. He can give honest answers but still do time for perjury because it all depends on their interpretation. 

If he didn't agree a criminal investigation, he wouldn't put himself in legal jeopardy. It's safer for an innocent person not to agree to that potential trap. No one in their right mind will ambush themselves by requesting a criminal investigation. Why should they cooperate with their enemies? 

That's one reason the burden of proof is on the accuser. Why should an innocent person concede that there's anything that needs to be investigated? That concession is a tactical blunder. It gives his enemies a foot in the door. 

Stop Being So Deferential To Christine Ford

Republicans and other supporters of Brett Kavanaugh need to stop being so deferential to Christine Ford. The evidence still suggests that she's been lying about Kavanaugh's alleged assault on her and other, related matters. The verisimilitude of her facial expressions, tone of voice, and such at the hearings yesterday is far outweighed by the other evidence suggesting her untrustworthiness. As David French noted in an article yesterday that, unfortunately, is too deferential to Ford:

Moreover, we also often have this mystical faith in our own ability to discern the truth by examining tone, demeanor, and likeability. She was “real.” He’s been “wooden.” These things impact us far more than we’d like to admit. Yet if there is one thing we know from our modern re-examinations of the impact of witness testimony on case outcomes, our faith in ourselves is deeply misplaced. We’re not very good at determining who’s correct and who’s mistaken by watching people talk. That’s one reason why innocent people go to prison, including for rape….

She has made her claim, there are no corroborating witnesses. No one else can place the two of them together at the party — not even the witnesses she’s identified. She is inconsistent or forgetful on a number of key points. She can’t even identify who brought her to the party or who took her home. He’s denied the claims and will deny them again.

That’s thin — very thin — evidence of sexual assault. The evidence is no stronger this afternoon than it was before Dr. Ford testified. When this controversy began, I said that her claims were serious enough that, if true, Kavanaugh should not be confirmed. Further, I said [that] she should only have to carry the lowest burden of proof — to establish that her claims were more likely than not. If you step back, look at the totality of the evidence and consider that she has brought no new evidence to the committee, I still don’t believe she has met that minimal burden.

For those who think the verisimilitude of Ford's testimony yesterday equals or outweighs the evidence against her claims, how do you explain the verisimilitude of Kavanaugh's testimony later in the hearing? We can think of possible scenarios in which both individuals are sincere (drunkenness distorting memories, etc.). But the issue is what's probable, not what's possible, and these alternative scenarios have problems of their own. The explanation that best fits the totality of the evidence is that Ford has been lying. Stop being so deferential to her, especially when she just recently has been caught making so many dubious claims, repeatedly contradicting herself, acting as if she doesn't have certain political motives that the evidence suggests she does have, etc.

Indignation

Is Kavanaugh's indignation at the character assassination at odds with judicial temperament? Take a couple of cliche counterexamples:

It's routinely said that a lawyer shouldn't represent himself if the lawyer is accused. That's because a lawyer will lack the same detachment when he's a defendant. That doesn't mean  he lacks detachment when representing a client.

Likewise, it's routinely said that a doctor shouldn't treat his own family for a dangerous medical condition because he's too emotionally invested in his own family to make dispassionate medical judgments. That doesn't mean he lacks the critical detachment to treat patients who aren't that close to him. 

"Tainted!"

1. One argument (if you can call it that) for not confirming Kavanaugh is that he's been "tainted" by the coverage. To the contrary, that's a reason he ought to be confirmed.

Here's what I mean: Democrats/secular progressives rely on intimidation rather than truth, reason, and evidence. They dare you to confirm a nominee who's been "tainted". 

And that's a reason he should be confirmed, to incapacitate that tactic. To show that we're not hostage to their approval or disapproval. To show that we're not afraid to confirm a "tainted" nominee.

That tactic is nothing more than psychological coercion. So it's necessary to call their bluff. We must demonstrate that we're not afraid of their name-calling. We don't care. That won't stop us. We'll go right ahead and vote for candidates they say are "tainted". That has no power over us.

He's not "tainted" due to probative evidence of wrongdoing. No, the mere uncorroborated allegation is supposed to leave a candidate or nominee with "a cloud over his head". That tactic must be opposed. That must be ignored. That tactic must be rendered impotent. 

2. In addition, there's the double standard. Female politicians and female accusers can say anything they want any way they want. They can be emotional, angry, aggressive, patronizing. If, however, the accused (a man) is aggressive or defiant in response, that's mean. It makes it almost impossible for a man to defend himself. (Indeed, that's the strategy.) That double standard needs to be relentlessly challenged.

3. Finally, proving a negative is often far harder or simply impossible than proving a positive. If something happened, there may be evidence. But what's the evidence that nothing happened? Well, nothing is evidence that nothing happen. A nonevent leaves no trace.

There are instances in which it's possible to prove a negative. But in many instances that's not the case.

That's why the burden of proof is on the accuser, not the accused. This isn't just an artificial technicality. The burden of proof is different for proving a positive than a negative. 

Mortal combat

As if uncorroborated allegations are self-validating. Behold the beauty of circular justification: an allegation taints him by virtue of the allegation itself, and not whether it's true, not whether there's any solid evidence. 

Notice the strategy: if one uncorroborated allegation doesn't sink his confirmation, then the cumulative weight of multiple uncorroborated allegations, increasingly surreal, is supposed to sink his confirmation.

It would be dishonorable to throw Kavanaugh over the back of the sled to save ourselves. Moreover, it's counterproductive. This tactic poses a threat to all men. We need to watch each other's back. We can't permit a culture in which men are presumptively guilty.

The Democrats have made this a fight to the death. So we need to respond in kind. If they're going to turn confirmation hearings into mortal combat, we can't afford to back down.

Flashing

A scurrilous allegation against Kavanaugh: 

https://www.nationalreview.com/2018/09/through-the-looking-glass/

But suppose for argument's sake that as a Yale student, Kavanaugh exposed himself to a female student. Why do secular progressives act like that's a big deal? For instance, Dianne Feinstein and Kamala Harris are both members of the Judiciary committee. And both of them rose to power in San Francisco political establishment. They don't seem to think that obscene, pornographic gay pride parades are morally disqualifying. For that matter, Feinstein's predecessor, Harvey Milk, was a notorious queer pederast. 

What universities with coed dorms, coed bathrooms, and coed locker rooms? That includes state universities in California and Hawaii (which Senate Judiciary committee member Mazie Hirono represents) as well as Yale. Liberal college administrators have made it nearly impossible for students not to expose themselves to members of the opposite sex. So do they really think flashing is wrong? What about Yale sex week?

Don't all the Democrats on the Senate Judiciary committee support transgenderism? So they don't have a problem with anatomical men exposing themselves to women and vice versa in public restrooms and locker rooms. 

Either Kavanaugh's critics are brazen hypocrites or else they were so deranged that one part of their brain doesn't remember what the other part of their brain believes. 

The presumption of innocence

There's currently a debate about whether Kavanaugh ought to enjoy the presumption of innocence.

1. The presumption of innocence is an artificial legal standard. In our system of justice, it's better for a guilty man to go free than for an innocent man to be convicted. That's a good legal standard. For one thing, a defendant has so much to lose in a criminal trial. In addition, the state has resources that most defendants don't. 

2. However, I wouldn't say there's an abstract or general presumption of innocence outside the courtroom. Rather, it depends on the evidence. If there's insufficient evidence one way or the other, the responsible attitude is to suspend judgment.

3. The mentality of secular progressives, exemplified by affirmative consent and campus kangaroo courts, is that when a woman accuses a man of sexual harassment, assault, or rape, the woman is presumptively innocent and trustworthy while the man is presumptively guilty and untrustworthy. 

That's a sexist attitude, and it disregards reality. Sometimes men lie, sometimes women lie. When you throw alcohol into the mix, the accuser or the accused can sincerely misremember. 

There's no justified general presumption, no presumption in the abstract, that a female accuser is the innocent victim, is telling the truth, while the accused is the perp. That can only be assessed on a case by case basis. It depends on specific evidence, or lack thereof. 

4. At this point I support Kavanaugh's confirmation, not based on the presumption of innocence, but because I haven't seen any convincing evidence that he's guilty. I make allowance for the possibility that her story is true. The fact that Kavanaugh hung around Mark Judge makes it likely that he attended some of the same drinking parties. 

But that doesn't make the allegation true or even probably true. What if she was under the influence? What if they were both under the influence? That clouds judgment. 

5. The closest thing to independent evidence is the polygraph. But that's dicey:

i) From what I've read, polygraph results are just slightly better than chance.

ii) We don't know what questions she was asked.

5. In addition, there are holes in her story. 

6. It's important that we not let Democrats win using these tactics. 

Suppose he did it?

In different ways, Michael Brown, Bill Vallicella, Dennis Prager, and Robert Gagnon have all argued that even if the allegation against Kavanaugh is true, he should still be confirmed:

http://maverickphilosopher.typepad.com/maverick_philosopher/2018/09/dennis-prager-the-charges-against-kavanaugh-should-be-ignored.html

https://askdrbrown.org/library/should-your-past-sins-disqualify-you-today

https://www.nationalreview.com/2018/09/brett-kavanaugh-accusations-should-be-ignored/

https://www.facebook.com/robert.a.gagnon.56/posts/10161093605335045?__tn__=K-R

Their arguments are worth reading. The tactical advantage of that position is that you can discount the allegations, discount calls for an investigation. It's a simplifying maneuver.

Since I think Ford's story is weak, I don't need to have a considered answer to that hypothetical. I think it's unnecessary to go there. But if we do go there, it's much harder to maintain our moral footing. We lose some landmarks. 

1. One problem is that when people get away with a crime for many years, that aggravates rather than mitigates the original offense. Consider Michael Skakel and Bill Cosby, who were able to elude justice for so long. (Skakel is still gaming the system.) I'm not saying the allegation against Kavanaugh is morally comparable, but just using extreme examples to illustrate a point of principle. 

It's good when justice finally catches up with them. They managed to cheat justice for so long. To cheat the victim's right that just retribution be exacted on the perp. 

2. The best reason not to harm the innocent is because it's wrong to harm the innocent. That's the direct reason. That's the best disincetive.

A secondary disincentive is self-interest. If the would-be perp fears the consequences in case he's caught. The harm his action might do to his own prospects. Although that's not an admirable motive, it's often what prevents wrongdoing. If, however, we reward a fugitive of justice so long as he's able to play out the clock, then that dilutes the deterrent value of punishment. 

3. Assuming that he's guilty, there's more than one way it might have happened:

i) They were both sober

ii) They were both drunk

iii) He was sober and she was drunk

iv) He was drunk and she was sober

Culpability comes in degrees. Which of those scenarios is true affects the gravity of the offense. Intoxication can sometimes put one in a state of diminished responsibility. It can also make it easier to take advantage of someone. Depending on who's drunk or sober, that can be an aggravating or extenuating circumstance. 

4. Hopefully, Brown, Prager, and Gagnon don't think it makes no difference what you do as a minor so long as you clean up your act. If Michael Skakel turned over a new leaf after bludgeoning Martha Moxley to death, does that mean his crime should not permanently stigmatize him? 

What about teenage members of Muslim rape-gangs? What about young Muslims who disfigure women in acid attacks? Is there any adequate restitution? 

The dogs of war

From a recent Facebook exchange: 

TJ is with Joe Carter and Alan Noble.

Evangelical leaders are upset with the GOP, because the GOP isn't damning the proverbial torpedoes and rushing through the confirmation of a judge who's been credibly accused of sexual assault. This is where we find ourselves in 2018.

The next time some Christian conservative risibly tries to claim the moral high ground with you, keep this in mind.

Hays 

Where we find ourselves in 2018 is people who think an unsubstantiated allegation of sexual assault should put the onus on the accused. What if TJ was on the receiving end of that standard? What does he have to fear? Seize his bank records, medical records, email, text messages, &c.

Stacey

Where we find ourselves in 2018 is beholden to a bunch of old, white Conservative men who refuse to have the president authorize an FBI investigation into a sexual assault allegation against a potential member of the Supreme Court - a lifetime appointment, mind you - even though that precedent was set by President George H.W. Bush (R) in 1991 during the SCOTUS hearings for Clarence Thomas. 

These same old, white Conservative men want to rush the hearing and think the American public can't see that these same old, white Conservative men had no problem sitting on the Merrick Garland nomination for almost a YEAR. 

Where we find ourselves in 2018 is that many evangelical Christians seem to support this hypocrisy and the outright appalling assault on our democracy.

Hays

i) If it happened it wasn't a federal crime. Thomas and Hill were federal employees. The alleged harassment took place in the workplace. Hardly analogous. The FBI has no authority in that case.

ii) Why are you making sexist, racist, ageist comments about "old white men"? Is bigotry okay so long as you're a woman?

iii) The Senate had no Constitutional obligation to consider Garland.

Stacey 

Actually precedent shows the president is allowed to - and should - ask the FBI to investigate the claims. 

Hays

I explained why the comparison with Thomas/Hill is bogus. You didn't refute what I said. 

Stacey

What's the problem? If Kavanaugh's done nothing wrong he should welcome an investigation. I would. 

Hays

No one should welcome a rogue FBI investigation. The onus is not on the accused to disprove an unsubstantiated allegation. 

Stacey

Also GTFO with your Garland justifications. The entire country knows that was yet another GOP sham/scam. It's ok though.

Hays

Yes, it's okay for the Senate to ignore a nominee. It has that Constitutional prerogative. Remember when Democrats stiffed Estrada (and Janice Rogers Brown)?

Stacey

I'm fine with whatever you want to call me...ageist, racist, whatever. You don't know me so your labels mean nothing to me.

Hays

Dianne Feinstein and Ruth Bader Ginsburg are both 85-year-old white women. Do you have a problem with their age and race? Your complaint reduces to misandry. 

Stacey

I refute your idea that there should be no investigation because this was not a workplace/federal worker incident. In no way does that change the need for an investigation.

Hays

Actually it does since it falls outside the jurisdiction of the FBI.

Stacey

And in what world does an FBI investigation go "rogue"? Do you believe in the deep state or some other bizarre notions of the FBI?"

Hays

When people urge the FBI to violate its mandate. So it's your position that the FBI has the statutory authority to investigate alleged sex crimes by minors in private homes?

Stacey

Why don't you want an investigation?

Hays

i) You're playing a bait-n-switch. There's a difference between an investigation and an FBI investigation. In fact, when Susan Collins proposes that both the accused and the accuser testify, and be subject to cross-examination by their respective lawyers, that's an investigation.

ii) No, I don't think it's a good idea for Federal agencies with police powers to engage in extralegal investigations. That's a banana state.

Stacey

Maybe you're a closet misogynist who thinks all women fake sexual assault claims.

Hays

Maybe your'e a closet misandrist who thinks women never make false rape allegations. Do you think every black man who was lynched in the Jim Crow South was presumptively guilty just because a white woman accused him of rape? 

Stacey

There's every possibility you're just toeing the party line.

Hays

Unlike when you toe the Democrat party line?