Tarquin and Lucretia by Titian
I hesitate to comment on the current spectacle surrounding the nomination of Bret Kavanaugh to the Supreme Court since my words are unlikely to sway anyone’s mind. Still, let me state how a non-partisan juror or good critical thinker might consider the problem.
Point 1 – Your intuition about who is or isn’t lying is worthless. It has been well-demonstrated that humans are very bad at detecting lying. Instead, they simply superimpose what they want to believe or disbelieve onto whoever they are listening to. So don’t tell me someone seems credible or not. Your intuition here is worthless.
Point 2 – Dr. Ford has little incentive to lie and had a lot of incentive to remain quiet. Mr. Kavanaugh’s incentives are precisely the opposite.
Point 3 – There is a lot of circumstantial evidence against Kavanaugh. People who knew him as a teenager say he was a frequent drunk; his friend and fellow alleged assaulter Mark Judge wrote a book Wasted: Tales of a Genx Drunk
Point 4 – Kavanaugh is a liar. He gave misleading testimony about his knowledge of stolen documents when he was in the Bush White House and about his involvement in judicial nominations. In addition, when asked about his yearbook claim to be a “Renate Alumnius,” he pretended that there was no sexual insinuation. This was almost certainly a lie. And he lied when he said that references in his yearbook were about a flatulence and drinking game when they are both sexual references. He also lied by saying that it was legal for him to drink as a high school senior. He was then 17 and in his state, the drinking age was 21. And he lied about having no connections to Yale when he was a legacy student.
(I would add that the legal principle “Falsus in uno, falsus in omnibus” applies here. This Latin phrase means “false in one thing, false in everything.” In common law, it is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter.)
Point 5 – False accusations of sexual assault and/or rape are the exception, not the rule. This is well-established in the scientific literature. The bottom line is that false allegations are probably somewhere between 2% and 10%. For more see:
a) Wikipedia – False accusations of rape
b) National Sexual Violence Resource Center – False Reporting
c) Stanford University – Myths About False Accusations
Based on this fact alone Kavanaugh is very likely guilty.
Conclusion
If I were a betting man I’d say the chances he assaulted Dr. Ford are about 100 to 1. It’s possible he’s innocent but very unlikely. This may or may not disqualify him from a lifetime appointment to the Supreme Court, but the fact that he is probably a liar should.
Finally, Kavanaugh wants our sympathy for bad deeds committed as a teenager—which he may deserve—but you can bet he won’t show any mercy to non-white teenagers who plead before him in his court. At them, he will throw the full weight of the law.
Poor Kavanaugh. If denied this seat he will likely go back to sitting on the nation’s highest appeals court or accept a multimillion-dollar salary as a partner in a law firm. Like most entitled rich, white frat boys the law doesn’t apply to him—he only wants to apply it to the rest of us.
Finally, for a persuasive case against Kavanaugh by a conservative, see Jennifer Rubin’s great piece in today’s Washington Post “If we want to protect the Supreme Court’s legitimacy, Kavanaugh should not be on it.”
For more see also:
“Kavanaugh is Lying: His Upbringing Explains Why”
“Here’s Where Kavanaugh’s Sworn Testimony Was Misleading or Wrong”
“At times Kavanaugh’s Defense Misleads or Veers Off Point“
Let’s use the two-percent figure for false allegations.
If there were a mere 5,000 sexual assaults annually, false accusations would be a bigger problem than questionable police shootings.
I agree that Kavanaugh’s blatant obfuscations AFTER Ford’s accusation make him seem devious and untrustworthy, and thus unworthy of a court seat.
He is demonstrating that cardinal rule of lawyering: never admit anything. Sow doubt whenever possible.
This is in the same category of off-putting lawyerly instincts as Bill Clinton’s parsing of the definition of the word “is.”
Now, if Kavanaugh had admitted he was a hard-partying teen who looks back on his naive, privileged behavior with embarrassment, and that while he has no memory of an incident like Ford described, he cannot rule out the possibility … should those past events count against his record as a professional adult?
Timely article and comments.
“and that while he has no memory of an incident like Ford described, he cannot rule out the possibility … should those past events count against his record as a professional adult?”
If someone says,
“I just had a flashback that I assaulted your daughter in high school when I was drunk then.”
The parents would not be happy to hear it. And since Kavanaugh is a jurist, it would be a mark, however minor, against him. Reasons I don’t at all trust Kavanaugh:
*His intense anger and self-pity at the hearing, indicating lack of self control.
*His false piety in mentioning his virginity in high school– which if true would have made it more likely (out of desperation) he would have assaulted Dr. Ford and other women. Even if he had blacked out and has no memory of events in question, virginity would have made it more– not less– likely to perhaps trigger a blackout.
*Most of all I do not trust the man who nominated him. First of all I am instinctively conservative. A genuine well-balanced conservativism is along the lines of Goldwater, not Limbaugh or PT Barnum. To suggest that a complete demagogue such as Trump is a conservative is an insult to everyone who devised the Constitution 230 years ago.
Believe or not, Kavanaugh is a victim. A victim of high school peer pressure to get wasted and brag of conquests in the sack. A victim of a chief executive demagogue who appoints jurists he is none too familiar with. Trump said a couple days ago at a rally, “I heard good things about [Kavanaugh] for years, that’s why I nominated him.”
A victim of a country that is so confused that it would elect such a demagogue to its highest office. The nation itself is a victim of demagogues, Trump merely being the most prominent. And finally, Trump himself is a victim of those who built up his bloated ego for decades.
They all need counseling.
Thank you for summarizing so succinctly what should be glaringly obvious to all observers. I would add that regardless of whether he is guilty of sexual assault or even whether you believe he is lying or not (I think it’s blatantly clear he is lying about his drinking, but whatever) I would say that his aggrieved, belligerent, and histrionic performance during the hearing on Thursday clearly demonstrates he is unfit for the highest court in the land. Do we really want a Supreme Court justice who cries, sneers, and lashes out in anger when he has an emotional response to the case before him? This is completely unacceptable regardless of the facts of 36 years ago.
Apology for commenting twice in a row, but this rounds it out. What makes me mistrust the judgment of Kavanaugh’s proponents is how they defend Kavanaugh by repeating that the alleged assault was decades ago; and how Kavanaugh is qualified to be a Supreme Court justice. The latter is correct, Kavanaugh is qualified to be on the Bench. However, Bill Cosby was qualified to be on TV.
The following is a quote from a professional investigator, Comey, concerning the 36 year time lag:
*Yes, the alleged incident occurred 36 years ago. But F.B.I. agents know time has very little to do with memory,” Comey wrote. “They know every married person remembers the weather on their wedding day, no matter how long ago. Significance drives memory. They also know that little lies point to bigger lies. They know that obvious lies by the nominee about the meaning of words in a yearbook are a flashing signal to dig deeper.*
Thank you for adding to the case. JGM
Good point. I’ve just added to the post by noting that there’s a legal principle “Falsus in uno, falsus in omnibus.” It is a Latin phrase meaning “false in one thing, false in everything.”[2] At common law, it is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter.[3]
I agree with the article and the comments. The question of whether Mr. Kavanaugh’s actions in high school disqualify him for a seat on the Supreme Court is debatable, but his present lying most certainly disqualifies him. His astounding rants against the Clintons during his testimony also disqualify him as being entirely too politically polarized to perform his responsibilities fairly.
Mr Arends raises this scenario:
“if Kavanaugh had admitted he was a hard-partying teen who looks back on his naive, privileged behavior with embarrassment, and that while he has no memory of an incident like Ford described, he cannot rule out the possibility”
In such a scenario, I would be inclined to accept the propriety — not the desirability — of his confirmation.
This is a win-win situation: winning a slightly better deal for the nation, not beating the opposing team. If Kavanaugh’s nomination is withdrawn, a better nominee can be discovered. If Kavanaugh is confirmed, more details about him are sure to leak out– placing him and Trump on the defensive.
The Right is correct when they say this is not about Kavanaugh; it is in fact about Trump. We ought to feel no guilt, though. Trump brought this and so much else on himself by his cavalier attitude. He hasn’t displayed much anger re the Kavanaugh controversy , but his mild frustration has been vented on reporters.
Trump feels safe because he knows the worst that can happen to him is he might conceivably (unlikely) resign at some point, as the biggest celebrity in the world. Which ties in with your article ‘Survival Of The Richest’. When I long ago read ‘The Sovereign [i.e. billionaire] Individual’, it was preparation for what is going on today.
So I followed the links on false reporting.
The two-percent estimate seems to be based on the idea that this is the rate of false reporting for all felonies. That’s actually a surprisingly high figure, considering that most felonies have much firmer lines of evidence than claims of sexual assault.
Even so, with about 20,000 convictions per year for forcible rape by men, that’s 400 men per year, minimum, wrongly accused.
Compare that with about 50 questionable police shootings annually.
In short, sexually promiscuous men are an order of magnitude more likely to be falsely accused of sexual misconduct than they are likely to be mistakenly killed by police.
Or maybe it’s the sexually INexperienced men who have the most to worry about, since they are more likely to upset their partner.
I should clarify I’m not defending teen-aged Kavanaugh from Ford’s claims. It seems HIGHLY likely he behaved as described.
I’m responding to Mr. Messerly shrugging off the likelihood of a false accusation as a reason to never doubt a woman.
thanks for taking the time to comment Len. JGM
“Or maybe it’s the sexually INexperienced men who have the most to worry about, since they are more likely to upset their partner.”
Kavanaugh on TV informing viewers that he was a virgin in high school was corny, irrelevant and suspicious. He was trying to garner sympathy from conservatives. What if he had said,
“even if I did grope Dr. Ford way back when, I did not rape her.”
No good.
Strange thing is: how could he have thought his drunken antics as a teen would be forgotten? If a nominee had been arrested for stealing a candy bar as a youth, it might well be remembered by someone even if the arrest record had been wiped.
But Kavanaugh has nothing to lose. When/if Trump drops his nomination, he can write a book, go on the lecture circuit– and he will be better off than he would have been at the Supreme Court.