Judge Kavanaugh, Wood et al: The impossible decision.

Posted: October 7, 2018 in Uncategorized

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We have restrained ourselves from commenting overmuch on the Brett Kavanaugh matter for one simple reason.

From a distance, one simply cannot, with any real confidence, parse the facts of the matter.

It also raises so many fundamental questions as to spin the mind.

The most important of these are: how does the system effectively adjudicate matters that invariably happened out of the sight of corroborating witnesses?

And how does the system balance the concept of presuming a woman’s testimony of sexual assault to be valid and worthy of the deepest and most serious consideration, with the concept of “innocent until proven guilty by a jury of one’s peers” – a concept so ingrained in our own world view that is assuredly deserves the epithet “fundamental”.

The short answer to these worrysome questions is that ultimately – and unsatisfactorily – the “facts” of any given matter will often come down to opinion. Opinion about the credibility of each party to the dispute.

And opinion, of course, whilst inevitably part of our decision-making process, is simply made up of the accumulated life experiences we have had, and the opinions imprinted upon us by others at some time or other, and although it is a key decision-making tool for all of us, in no way can it reliably be called empirical. Nevertheless, it is often all we really have.

In these things, therefore, we often rely on our gut instincts. Our “feel” for the situation. Indeed, sans identifiable facts we fall back on aphorisms and folk wisdom. And this is not necessarily a bad thing. Recent research into “mob decisions” or the “wisdom of crowds” seems to tell us that the collective wisdom of large groups of people is more often likely to be right than wrong, born of some sort of collective hive mind experience that is not yet clearly understood, although much conjectured upon.

One such folk aphorism is “there’s no smoke without fire”.

This is the simple belief that when a quantity of controversy is in the air, something genuine must be behind it. And it is, indeed, a reliable indicator, to some extent. Over and over again investigations based on the appearance of smoke do, indeed, eventually reveal the fire behind it. The problem is that it also often amounts to nothing at all. Smoke can be manufactured by interested or malign parties, nowadays more easily than ever, to the extent that leads people to assume “it must be so”. This effect is magnified hundreds of thousands of times in a world where social media endlessly repeats “facts” that are not, in any empirical sense, facts at all. In a sense this is by no means solely a modern affair. For example the infamous Dreyfus affair from 1894 to 1906 divided France deeply and lastingly into two opposing camps: the pro-Army, mostly Catholic “anti-Dreyfusards” and the anti-clerical, pro-republican Dreyfusards. It embittered French politics and encouraged radicalisation on both sides for decades. But today, the effect is infinitely more powerful, and therefore infinitely more caution is indicated.

The Wikipedia article on Wisdom of Crowds is well worth reading. It reveals the pluses and minuses of this phenomenon. Ironically, one real danger is the desire to feel “connected”, leaving us at the mercy of our own emotions, urgently vacuuming up opinions and “facts” that confirm our world view. This goes way beyond mere confirmation bias, which is a well-understood phenomenon. It goes to what we actually believe to be happening around us. It affects our empirical view of the world. Our opinions become our reality. Doubt or rationality become dangerous to our mental well-being.

So what has the Kavanaugh case revealed about our ability to perceive truth? We would argue the following:

1. Whilst many men and women (and especially women) have become swept up in the outrage surrounding the accusations, many have also seen the entire matter as a political hit job on a decent man, or sought to downplay the matter “even if it is true”. Which way the opinion falls may depend on our personal backgrounds, or how we perceived the demeanour of the central characters.

2. U.S. President Donald Trump said he is “100 percent” certain that Christine Blasey Ford named the wrong person when she accused Brett Kavanaugh of sexual assault in testimony during his Supreme Court nomination hearings.

Yet Ford told the Senate Judiciary Committee that she was “100 percent” certain it was Kavanaugh who sexually assaulted her in the upstairs bedroom of a home in a wealthy Washington suburb in 1982 when both of them were teenagers. Her testimony before the committee was steady, largely unemotional, circumspect and appeared credible. And for many, that testimony dredged up painful memories of their own experiences of sexual violence, that had often been privately endured for years. Ford’s manifest bravery in the face of those who were at times both hostile and disbelieving also empowered survivors; they felt that they were no longer alone and that they too had a voice. Many felt the urge to take action, both in support of those who had been affected but also to change societal attitudes to sexual harassment.

3. In stark contrast, the Judge’s testimony was at turn tragic, angry, (bordering on fury), and sometimes overtly political and partisan. If he was an innocent man wronged then his emotions could quite clearly be understood. If he was a guilty man found out, then it appeared he was erecting an ever-growing smokescreen of emotive blather, to obscure any matters of fact. Which it was will depend entirely on the pre-held opinions one brings to watching his testimony. For many on the right it was understandable, credible and even long overdue. A warrior of conservatism fighting back for his reputation and his life against a conspiracy involving the Democratic Party, left wing media and femi-nazi activism. For many on the left his speech epitomised male privilege and a machismo-drenched “winner takes all” mentality which betokened no opposition. The left’s response to the entire brouhaha is well laid out here.

So what can we conclude from this riveting but sorry matter?

For all that the President tries to spin it one way, the short story is that the Senate have now said they believe Ford to have been untruthful, whether mistakenly or deliberately.

This must inevitably be a huge psychological blow to women everywhere who may delay reporting sexual assault for all sorts of very good and well-understood reasons. At the very least, concerted efforts must be made to encourage women to speak up against sexual violence perpetrated against them, whenever it was. If the net outcome of this matter is that fewer women will seek redress, that would be a dolorous outcome indeed.

The new Justice of the Supreme Court may have revealed himself to be temperamentally unsuited to such a senior role, no matter the guilt or otherwise of his case, nor the level of his legal acumen, which is by all accounts very high. At least one former Supreme Court Justice and 2,400 law professors believe this to be the case. It may be that his intemperate testimony will haunt him even longer than the facts or otherwise of the accusations against him.

In any civilised society, there must surely be a thorough legal investigation into the two other complainants against the Judge, if only to dismiss their accusations. To leave their matters swinging in the breeze is merely to prolong the saga. Indeed, should the Judge himself not call for them to be investigated, to clear the air, even though he has publicly rejected them? And if he does not, why not? What does that say, if anything? And what if those people – or Ford herself, indeed – bring a civil case against the Judge? How would that affect his ability to carry out his role?

Last but by no means least, the case has shown the American political system, and society in general, to be in an even more toxic state than everyone already knew it to be, if such a thing were possible.

American today looks more than ever like it did in the war-fuelled and conflicted era of 1968 and its surrounds. People simply seem unable to listen to one another, or to debate politely. They choose what to believe based on their political allegiance and not a careful review of known facts. In the world’s most significant liberal democracy, that is a matter of active danger, as people may give up on the model altogether in sheer frustration. Indeed, there are those that argue that the political classes are already preparing to do exactly that. A confluence of power and money is taking place which threatens to ride roughshod over institutions and process – and which is utterly uninterested in pesky little matters such as facts.

An unhappy time, in short.

You also deserve, Dear Reader, to know what we think.

In our view, the performance of the Judge in cross-questioning revealed him to be unfit to hold the highest level of judicial appointment in America, perhaps in the world, in its impact. Not because of his opinions – he’s entitled to those – but because of of how he chose to express them. But one can make excuses for his brutalistic performance, call it a one off, or argue we all might fail when under such scrutiny. All of which might be true. Or might not.

So to make our own judgement, fraught with incapacity and uncertainty, we will rely on one last piece of folk-wisdom, using an aphorism popular in our home of Australia.

When it seems impossible to be certain on the rights and wrongs of any given matter, ask yourself, “Does it pass the sniff test?”

Like a piece of meat lifted to quivering nostrils, does it “smell” fresh or tainted?

And to our nose, the Kavanaugh matter simply does not pass the sniff test.

But then again, we might be wrong.

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Comments
  1. underwriiter505 says:

    It appears to me that there is ample evidence of perjury on his part completely without regard to any accusations of sexual misconduct. It also appears to me that the judicial temperament is lacking in this – person. Apparently the American Bar Association agrees with all or some of that, since they rescinded the opinion they originally gave that he is qualified for the position.

    Like

  2. Pat A says:

    I am certain he is wrong for this post – everything I’ve seen,including watching the man himself speaks to this. He seems volatile, nasty, bigoted and vicious in his speech and as for his judgments – oh dear.

    Like

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