Sunday, September 30, 2018


A brief exchange I had with Robert Gagnon on Facebook:

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?

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

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.

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

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.

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.

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.

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

But mutual intoxication renders that imponderable.


  1. I don't really care about the drinking thing very much. While I agree that it's plausible that Kavanaugh got black-out drunk on at least some occasions, I'm willing to say that in the end I just don't know and I'm not willing to say that we should ruin this man's life on that basis.

    What does bother me a bit more is Kavanaugh's remarks on the "Renate Alumnius" yearbook remark. This is also what I've seen conservative pundits talk about least. This is, I think, the only really clear evidence of Kavanaugh lying. Here it's not just "that explanation strikes me as unlikely," as maybe the ralph remarks do, but as so unlikely that it's reasonable to say we know they're false.

    Incidentally, these remarks are even more irrelevant to the question of whether he likely sexually assaulted Ford than the drinking remarks. The drinking question can undermine how much confidence we have in his denial that he assaulted Ford while drunk. But the Renate Alumnius issue is completely extraneous. Still, it's lying under oath.

    I'm spit-balling here: what would make the logic of supporting Kavanaugh's confirmation different than the logic of supporting Trump's presidency? Many Evangelicals supported Trump on the basis that he was the least bad option and a decision had to be made. Given that Dr. Ford is most likely misremembering or lying and, at best, we simply can't know that her allegations are true, it seems that Kavanaugh's only real crime at this point would be a "white lie" to, perhaps, not embarrass himself in front of his wife and kids (I'm really not sure why he would lie about it). The alternative to confirming a good justice who told a white lie about an extraneous yearbook detail is have the left hold the seat open till 2020 where we risk an activist judge that could do real damage to the country.

    If my view of the situation is accurate, then, prima facie, wouldn't it make sense for the #NeverTrump-ers to align as they did before? Those who believe giving up the standard for political warfare is more damaging than losing any particular battle should oppose Kavanaugh's confirmation. Those who are convinced this battle could turn the tide of war should support it. But so far the #NeverTrump pundits, like David French, have supported Kavanaugh (but they also haven't said anything about the Renate Alamnius remark... at least not that I've seen).

    Personally, I was #NeverTrump, but I think the calculus has changed and, as of now, plan to support Trump in 2020. The factors that I think now justify my voting for Trump may also support me being in favor of Kavanaugh's confirmation. But I haven't dug down into the details of this yet.

    1. John--

      I, too, am troubled by the Renate remarks, but they are difficult to ascertain in terms of their intensity.

      Was Kavanaugh crass, domineering, and excessive as a teenager, or--more in line with his later model-citizen reputation--was he simply a "red-blooded" choir boy?

      Teenagers brag about real AND imagined sexual conquests...or even partial conquests. Perhaps all he did was to have a "make out session" with the girl (whose name appears a number of times in the yearbook in similar contexts).

    2. The remark, in itself, doesn't bother me in the slightest. It is irrelevant to whether he assaulted Ford or whether he is competent to sit on the court. What I'm bothered by is his explanation of the remark under oath. He seems to have lied about it. It's not clear why he would even need to lie about the remark to save embarrassment in front of his wife since, as you say kids sometimes brag about imagined sexual conquests. Why not just say "In high school I exaggerated my sexual exploits"? His interpretation of the remark doesn't even make sense and it just adds one more thing that the left can point to in order to make their case against him.

    3. John--

      That makes sense in a reasonable confirmation process. I'm not at all sure it makes sense here. The two sides are at war.

      Renate in the present day denies that she was promiscuous at the time. So perhaps all Kavanaugh is guilty of is exaggeration...of sidestepping the question...of withholding the whole truth.

      He may have even been instructed not to give them ANY red meat. To give this gang of thugs an inch may have resulted in their taking a mile.
      I seem to recall Judge Bork queried on his drinking habits...and he said something on the order of enjoying an occasional glass of wine with a meal. To NOT downplay any personal peccadillos may be to see them hyperbolized beyond recognition.

  2. This closely mirrors conversations I've had with my wife.

    Unfortunately for Kavanaugh, if it comes out in the investigation that he downplayed his partying ways, he will be vitiated for his "lack of candor."

    Those with a commendable judicial temperament are transparent and forthcoming, don't you know.