The Moral Bankruptcy of Gender Critical Definitions of Man & Woman

This post will rely on a single individual as an example of so-called “gender critical” thought: Holms. Holms writes frequently on FtB, and has been engaging in a long back-and-forth with myself and many others over on Mano Singham’s blog recently. (This conversation is happening on the same blog post where Mano suggested the value of discussions of horizontal hostility.) I have been growing steadily more uncomfortable with the exchange because it long ago veered away from any discussion that might illuminate how and why horizontal and intra-community hostility develop within a particular group. While Mano has made no move to shut the conversation down or even to express any specific discomfort over the thread, I think it is respectful to a blog owner to have the conversations suggested by a post, and to start your own thread somewhere else if you want to have a different conversation. Thus this post.

The phenomenon I want to discuss begins with a discussion of Holms’ definitions of “man” and “woman”:

I have actually said that ‘man = adult male human’ and ‘woman = adult female human’ are the current meanings as determined by common use.

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Explaining Horizontal and Intra-Community Hostility: Aoife Helps Out

Aoife O’Riordan who writes (or wrote, last post was in 2017) the blog formerly hosted here on FtB Consider the Tea Cozy once wrote a bit about anti-bi-woman sentiment in lesbian communities. She doesn’t gives us much about causes, but she does identify a problem similar to that experienced by trans* women in queer women’s communities (especially but not only those that label themselves lesbian communities). This should be no surprise, since she’s actually attempting to use the experience of cis bi-women to educate other cis people about the experiences of trans* people who share their communities.

There’s lots of lesbians, you see, who won’t date or sleep with bi women. Even if there’s mutual attraction, they don’t want to go there, simply ’cause we fancy men as well. Girl meets girl, girl fancies girl, girl finds out girl also fancies guys, girl backs away in disgust. While it’s absolutely their right to reject whoever they like for any reason the like (of course!), it still sucks to hear. And the fact that it’s a pattern familiar to almost every bi woman I’ve talked about is, y’know, a problem. This doesn’t mean that every lesbian in the world has to date the first bi woman who fancies her, regardless of whether the attraction’s mutual! It just means that a lot of bi women (and hopefully loads of lesbians too) would like it if the lesbians who do feel that way took some time to think about whether their feelings might be based on prejudices and stereotypes. That’s all.

But this anti-bi-woman prejudice, where it exists, isn’t explainable as a reaction to some genital configuration because it is just as prevalent when lesbians interact with cis bi-women as it might be when lesbians interact with trans* bi-women (though in practice it appears to be dramatically more prevalent, because sexual orientation tends to take a back seat to biological sex – past or present – in discussions of cis* lesbians interacting with trans* folk).

We have to draw on other knowledge to help us explain this intra-community split. Fortunately, I’ve written about this before on a Pharyngula thread:

[After WW2 and the Holocaust,] people wanted an ethical system that said, “Never again” and meant it. Clearly the deontology of divine command didn’t do it. You couldn’t count on contractarianism to make a government respect its citizens. So, what then?

The infinite, the universal, the transcendent is what. If we can’t give human beings an infinite, transcendent value, then there will always be the possibility that some community or nation will believe that mass killings are desirable based on comparing the value of those human beings (to the nation considering the killing, not to those people themselves) to the value the society places on its own goals.

Infinite worth was the way out of the despair of WW2. Existentialism spread like wildfire. Good stuff, in its way. It gave us terms & concepts like “devalue”.

If you see yourself as horribly devalued, however, and you latch onto infinite value ethics as your level to try and achieve your safety, a couple things [might] happen. First, you try to universalize: you want to get every woman on your side, the struggle is that important. Thus, “we’re all in it together”, thus “we’re all exactly the same in the way that matters most”, thus, “those sufficiently different from me that I truly can’t imagine myself ‘the same as’ cannot be in my category”, thus “those falsely claiming to be in my category are jeopardizing my movement and thus my safety,” thus “it is appropriate to label their destabilization of this category upon which I rely for my ultimate safety ‘an attack’ ”.

[This particular chain of ethical reasoning] also shows how the same women can claim to be anti-racist (“we’re all in this together, of course I care about women of color”) but end up pursuing an agenda that has nothing to do with ending racism (“The real oppression is sexism, it’s universal to every society.  So when we get rid of the real oppression, *THEY* won’t need racism to divide us and racism along with all those other subsidiary oppressions will pass away” – AKA “there will be no racism after the revolution, so don’t worry your nappy little head about white supremacy”). [original comment lightly edited for our purposes – cd]

Keep in mind that these aren’t thoughts that necessarily flow from existentialist ethics. Indeed de Beauvoir’s graph on ethics and morality was called, “Pour une morale de l’ambiguïté” (in english traditionally rendered: “The Ethics of Ambiguity”), and the intolerance of destabilized categories of essence is directly contrary to de Beauvoir’s concept of self-directed, self-determined essences. Nonetheless, these ethical statements about the negative value of subdividing the category of woman are descended directly from de Beauvoir’s leading-edge, second-wave existentialist feminism. This is, in fact, one of the reasons why I find exclusionary feminisms so incomprehensible at times. They clearly attempt to preserve quite a lot of de Beauvoir and other early second-wave feminisms, and yet they fully reject aspects of those feminisms that were fundamental to their cohesion and their ethics. In the language of de Beauvoir, they have embraced facticity and rejected transcendence.

Nevertheless, while hollow-boned, feather-winged flyers were not inevitable once early archosaurs evolved, and while hollow bones and other aspects of modern birds would be in conflict with the mode of existence that made early archosaurs what they were, looking backward we can say that birds’ descent from those early archosaurs is a historical fact. Likewise, it is a historical fact that these ambiguity-rejecting, fear-based feminisms descended from de Beauvoir’s feminism (albeit with admixtures from independent sources).

It can be very difficult to understand how trans* exclusive feminists who appear to cling to the second wave can simultaneously reject so much of the second wave’s fundamental insights. But this is not because the development of these feminisms and their ambiguity-rejecting ethics is inherently incomprehensible. Rather, the difficulty in understanding comes from attempting to derive these feminisms based solely on prior feminist categories. In fact, other sources of fear or love, other priorities and values, even other meta-ethics from entirely outside feminism are constantly mixing with our existing feminisms. At times, they enrich our work and make it more effective, as with Kimberlé Crenshaw and the development of intersectionality. At other times they mix poorly. But on its own, bringing into feminism other aspects of women’s experiences, knowledge, and thought is not a bad thing. Indeed it’s a good thing. We wouldn’t have feminism at all if we weren’t allowed to bring those things into a feminism that did not yet include them. How else would we have gotten a feminist labor movement? How else would we have gotten a feminist movement for a more ethical judaism?

So let’s understand that this fear of the other, this fear of destabilized categories, when brought into an early existentialist feminism that offers hope of a universal, stable category of woman, a category that can then be called upon for universal action, can seem wise. It does not instantly negate the opposition to sexism that is the organizing principle of all feminisms. But if you hold existentialist feminism to the light in just the wrong way, it seems as if our fears as women of sexist domination absolutely demands easy categorization, eradication of ambiguity, an undivided unity of interest.

It is tragic, but even the existentialism that so many thought offered a way to guarantee that we fallible humans would live up to our own mutual promise, “Never again,” cannot prevent dehumanization. It cannot prevent violence. It cannot prevent – and it has not prevented – genocide.

The cry for easy categorization, for undivided unities in the face of violence is a cry of fear. It guides us towards liberation no more reliably than any other fearful response. But it is comprehensible, and it should not on its own negate efforts to feel and to offer sympathy across the boundaries of rigid categorization those crying out in fear construct. Indeed better understanding and sympathy for the fear can often be useful in opposing the ossification of these new and contested constructions.

 

 

The Trumpian Defense of Cissexism

Lately we’ve been seeing a lot of assertions that lefties who support trans* advocacy are engaged in some outrageous, anti-free speech labeling of persons and actions as cissexist or transphobic. The argument goes something like this,

It has become impossible in some quarters to have an honest conversation about what is, and is not, a reasonable demand because anyone who questions any demand is simply branded as a transphobic bigot.

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Thirdmill301 and Cis Cowardice

Normally I respond to people talking about trans lives in comment threads in those comment threads. Partially this is because I really do believe in the power of discussing and exchange of information. Yes, I can be harsh on people who, in my opinion, have commented enough times in ways that repeat errors which have been corrected in the same thread that I believe it’s reasonable to infer that they aren’t actually learning from the tactics of helpful education. At that point, I usually decide to change tactics, and one set of tactics involves going for the jugular of a bad argument. Despite the harshness with which I treat those bad arguments, I’ve historically wanted to maintain those responses in the same threads as the comments which occasioned them.

But today, I’ve decided to change tactics, because I believe that sometimes it simply isn’t enough to directly address one person in a thread while the conversation goes on around us. For that reason, I’m going to do a couple posts responding to thread comments with blog posts. And I’m going to start with a bit by Thirdmill301:

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Riffing on Reprobate Spreadsheet: Womanhood Edition

So, you should read RS for the new post up on the incoherence of TERF philosophy and/or ideology, it’s well done. But I want to single out and emphasize one particular bit. HJ Hornbeck excerpts a Medium article credited to a number of folks1 and proceeds to challenge it on a number of points. While I don’t have more than a few quibbles with what HJ wrote, HJ acknowledges that there is much more that could be challenged than was covered in the Reprobate Spreadsheet analysis. This is a place where a bit more of that challenging will happen.

Here, I want to emphasize a point that HJ made briefly that I believe could use more attention, add a couple of points original to me, and then allow you to get more from HJ’s original analysis. Here is the section I wish to reanalyze, a smaller portion of HJ’s first excerpt2:

the view that the category of ‘woman’ is correctly defined as ‘adult human female’. Biological essentialism is a position about whether certain traits of women are biologically produced by sex category membership. Womanhood itself is not a genetic ‘trait’ and no-one on either side of the dispute thinks it is conceivably biologically produced in the way that, arguably, emotional intelligence or maternal instinct is supposed to be.

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Hell is Hope Hicks

As you may already be aware, the NY Times just published an Maggie Haberman essay on Hope Hicks’ most recent dilemma: should she break the law (again) or should she obey the requirements of a congressional subpoena?

The NY Times and Haberman advertised the article on twitter this way:

Now, some took issue with the glamour photo shoot that the Times commissioned for this piece. To the extent that criticism has any validity, it’s not about merely displaying a photo of Hope Hicks, it’s about the fact that they clearly spent significant resources in order to craft an artificial image that comports with Haberman’s editorial depiction of this former Trump aide (and those critiques that mentioned the photo without including this more detailed objection run the risk of communicating an anti-feminist message that what is important in media coverage of women is the photo shot editors choose to run). The lavishing of resources emphasizes the PR function of this effort; it is, in short, not a news story.

And yet, this wasn’t featured in the Times’ lifestyle section. It was featured in “Politics” which, when it is not overt opinion (which should be confined to the OP/ED pages anyway), is supposed to be news. So what is the news story here?

That leads us to the other criticism that many have already made: choosing to comply or not comply with a legal order is not an existential question any more than choosing to print up a few million dollars’ worth of counterfeit bills. Both lawyers and philosophers (mainly ethicists) took issue with this ridiculous and inaccurate description, so it’s not surprise that I, too, found it risible. The philosophers mainly focussed on the misuse of “existential questions” in a way that Sartre would have found condemnably ignorant even if it did tend to validate his assertion, “Hell is other people.” The lawyers had a different take, not so much emphasizing the “existential” part, but focussing rather more on the “question” part. One lawyer, Max Kennerly (@MaxKennerly), put it this way:

Most existential questions have no clear answer. What is my purpose in life? What happens after I die? Is there a higher power guiding my destiny? Does my dog have a soul?

Other “existential questions,” however, are answered by 2 U.S.C. §§ 192 & 194. Compliance is mandatory.

Yet, despite my laughter when I read that and my sympathy to those who would call out the Times for bad philosophy and bad law, my most significant problem with this story and the promotional tweet is neither of those. Instead, read this tweet from Sam Wang @SamWangPhd:

“Should a federal employee obey a lawful order, or stay loyal to an individual? Here at @nytpolitics, we can’t say. It’s just all a partisan game! We’re not going to make a value judgment! We have great portrait photographers though.”

The NY Times isn’t doing something new in this story. They are treating compliance with the law as entirely optional for the rich and well connected even as other stories, say, stories about a famous woman who went to jail for defying a subpoena, don’t include the same PR efforts or gosh, who can say whether it’s fair that someone obey a subpoena support for lawlessness as the Hope Hicks profile.

The Times is doing what the times always does: it’s opposing accountability for the rich and powerful who have the most motive and opportunity to destroy US democracy, while insisting on strict accountability for those who break the law in a principled stand on behalf of what they believe to be a necessary resistance to the subversion or destruction of democracy. Thoreau-like, I can believe that Manning subscribes to the maxim

“Under a government which imprisons any unjustly, the true place for a just man is also a prison.”

But the proper response for those of us on the outside is not to scream, “Yeah, lock her up!” at democracy’s defenders and, “Let’s all sympathize with the lawless,” as they attack that democracy. Believing that we have reached the point where the true place for a just trans person is in prison is not to believe we have accomplished something wonderful that must be perpetuated.

The anti-democratic limits on acceptable discourse accepted and propounded by the Times must be opposed. The Times and Haberman and her editors are not worthless and thus irrelevant. The magnitude of this mess is only appreciated by accepting that the Times has an impact on the policies and practices of justice (and other things) and have great value to those that benefit from advancing the Times’ skewed view of proper accountability. Ignoring the Times is not a principled and logical and effective way to deal with their anti-democratic trolling. Instead, the Times must be countered each and every time they embrace the ideology of an accountability-free elite. We must never forget that the Times isn’t portraying the Trump administration as wise and sympathetic philosophers because they are working honestly or even diligently to divine the best possible response to problems of Gordian convolution and unsolvability. The upper ranks of the Times (including Haberman and her editors) are portraying the Trump administration as wise and sympathetic philosophers because they, too, believe themselves better off in a world without accountability for the US elite.

This ideology must be opposed wherever it presents itself.

 


Although I originally titled this “Hell is Hope Hicks” I later thought that perhaps it would be better titled, “Hell is the New York Times”. Ultimately I decided not to change it, though there are certainly reasonable critiques of making Hicks the focus of the title when the main critique is not of Hicks’ disdain for the law (which exists and is critiqued in passing), but instead the NY Times advocacy of disdain for the law – or at least advocacy for the idea that we must consider disdain for the law to be a reasonable position which might be reasonably held by reasonable people in a democracy.

Accountability Is The ONLY Radical Idea: Oh, and look what we have here!

I’ve been saying for years now that accountability is the only radical idea. You can propose single payer health care, you can propose shutting down entire federal agencies, you can propose a post-racial, post-sexual orientation society where everyone gets randomly assigned sex partners for 6 days before sex partners are randomly reassigned for the next 6 days, but nothing about any of those ideas is radical unless there are actual consequences for failing to implement them.

You can have the most hare-brained scheme proposed by the most hairy-eyed word-bomb thrower*1, but hare-brained schemes tend not to get actual implementation, and when things get hard, people will give up unless the consequences for giving up are worse than the consequences for moving forward.

So think about it: which would produce more screaming about radical change, a US president saying that they’re working on a proposal to tighten the laws and increase the penalties for white collar crimes, or a US president restructuring the justice department’s priorities so that no laws are changed, no new crimes are created, but every time a company is found to have committed a crime, the justice department actually sends the people that run the company to jail for conspiracy to commit that crime? ShearsonLehman defrauds investors and profits to the tune of US$12 billion, then negotiates with the feds to reduce the financial penalty down to US$250 million? Okay. That sucks. We’re incentivizing lawbreaking right? But if the top 200 corporate officers each spend a minimum of 12 years in prison, that’s a fuck of a lot more incentive for ShearsonLehman not to break the law going forward than the profit is an incentive to break the law. Also, when fucking EVERYONE involved in the conspiracy goes to jail, you get a fuckload more whistleblowers because they don’t want to be the least powerful person in the conspiracy, with no way to stop the fraud from getting too brazen, but with just as much criminal culpability as the persons at the very top of the corporation. The net result is a hell of a lot more effective than adding new penalties to some dusty book of laws without ever providing a credible threat than any executives will face any consequences at all.

Accountability, then, is the ultimate – and ultimately the only – radical idea. This is also why accountability is as rare as a mountain-dwelling tree wearing a tricorn and denying the existence of the FSM in front of CNN’s cameras on Talk Like A Pirate Day.

But wouldn’t you know it, while NBC isn’t willing to create actual structures of accountability, it appears that they’re actually going ahead with a little accountability mimicry. And not just NBC, but apparently at least one talent agency as well. “What’s that?” you ask. “What is our fair Crip Dyke on about?” It is just this: Megyn Kelly has been mutually dumped by her current talent-rep agency, and while apparently there has been a movement towards separation for a while now, the agency that Kelly was courting for her next monagentous relationship called off the engagement. You want more? Kelly’s ultimate boss, NBC News Chair Andy Lack, has made it clear he’s kicking her to the curb.

“But accountability mimicry?” you say. “Dear Crip Dyke, wouldn’t this be actual accountability?” I understand the inclination to think so, but that’s not exactly likely. If you read the article, NBC has been upset with Kelly about ratings, they’ve been upset about her insensitivity pissing off her guests in ways that created bad publicity for the show, and most of all they’ve been upset because – with notable exceptions during discussions of Kavanaugh and the guys to whom she wants to show actual favoritism – she repeatedly returns to the topic of sexual harassment in the workplace and expresses the opinion that guys should get fired for that shit. Of particular note, she has criticized NBC personalities and the NBC brass – including, yes, Andy Lack – for an environment in which sexual harassment is allowed to flourish. Andy Lack might be particularly upset about that last one because it comes across as actually being true, given all the evidence and shit.

So now when Megyn Kelly decides to rant about how blackface is just a jolly-happy-funtime and can’t we all just agree to let a little racism slide between whites, the outrage among many people around the country is certainly genuine, and the outrage among prominent Black presenters on NBC is probably genuine, but there are good reasons to question whether consequences imposed by management are actually motivated by her racism. This may not be accountability so much as backstabbing, revenge, and an effort to secure impunity for sexual harassers and the managers who enable them.

Nonetheless, I say celebrate. Break open that juice box and take a good, hard suck at that straw, because when people get fired on the pretext of their racism, sooner or later the 300 million people who aren’t following inside politics at the big media companies are going to think that racism is an actual fireable offense. This is a classic example of the seemingly paradoxical phenomenon unintentional performativity. Performativity is a concept most frequently associated with feminist Judith Butler, and is intended to describe acts that create the truths they portray. Someone who has no wife, but who tells your friendly, neighborhood Crip Dyke, “I take you as my wife,” may very well (if certain preconditions are met) actually gain a wife by saying those words. Performativity is especially important in the Butlerian analysis of gender where a person say, “I am a woman,” far less frequently using actual language as such a person might do by brushing on some eye shadow or donning a dress. And, in performing gender in this way, one may very well become a woman at least for the purposes of how others will treat you on that day. But here’s the thing, if one does that often enough, then one gets treated as a woman with regularity, and in being treated as a woman with regularity, the psychological and sociological traits that adhere to women eventually adhere to the person performing womanhood. At that point, one might be said to have become a woman through performing womanhood and the performativity cycle, though much longer than even a wedding, is finally complete.

In the case of unintentional performativity, one can accidentally initiate this cycle. Of course, it’s not actually peformativity if the performance does not eventually create the reality, so unintentional performativity is not a one-off. It must actually begin or continue a pattern that eventually creates the reality it depicts.

Let me be clear: I do not think that NBC is getting rid of Kelly because of her racism. However, taking advantage of her racism to fire someone that NBC dislikes for other reasons requires making the case that it is reasonable to fire someone for their racism. Moreover, Kelly has a contract which is guaranteed unless she is fired for a sufficiently serious cause. So if NBC really wants to keep their money, and/or if they really want to hurt Kelly (the latter being the more likely motive), they have to make the case that it is not only reasonable to fire someone for a defense of blackface, but that it is unreasonable not to fire someone for such statements.

NBC, then, while clearly anti-accountability judging by the tolerance they showed to Matt Lauer and others, is going to be making the public case that those who use prominent media positions to spread racism must always be fired. We may suspect that an institution like NBC with its history of tolerating sexism and racism has other motives, but in portraying racism as a fireable offense, NBC is making racism a fireable offense.

Make no mistake, this is a feud between different members of the wealthy and powerful, and none of those directly involved actually want accountability for the wealthy and powerful. And yet, what today begins as mere consequence will someday become the outcome of accountability.

Today is a very, very good day.


*1: One of my favorite commenting pseudonyms in the ever!

No, I Don’t Want Germaine Greer Beaten

Or Andy Lewis or mariamaclachlan or Maria MacLachlan (if those latter two are different people).

Sometimes I despair of getting this world right. I walk a pretty thin line in refusing to condemn self-defense specifically while abhorring violence generally. If we eliminated all violence except that which occurred when someone legitimately thought they were acting in self-defense we would still have far too much violence.

Existentialist radical feminists, the main feminist group from whom the categorical statements about defining women in ways that forever exclude the possibility of trans* self-determination regularly flow, do indeed spread a bunch of bullshit. gmcard, for instance, says that the definition of women has been “people without penises” since time immemorial. This is, decidedly, not true.

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Blackstone, Crip Dyke, & The Next Nomination

William Blackstone once wrote:

all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.

The latter part has been deemed The Blackstone Formulation, being a restatement of a principle of law that goes back much further in time than the 1760 date on which Blackstone’s Commentaries on the Laws of England was published. It has reappeared frequently in different times and places, typically reworded slightly but with the numbers rarely changed. What is often lost is that we’re not actually talking here about things like whether a woman should accept a marriage proposal from a man credibly accused of beating the fuck out of his past partners. We’re talking specifically about the criminal law and whether the government is or should be empowered to end or suspend someone’s freedoms, and under what conditions that power can be exercised. The point is to encourage us to think about the consequences of acting under the guise of justice to punish those whose guilt is less than certain.

During the Kavanaugh hearings, I often found myself screaming that the presumption of innocence is not for confirmation hearings. But while the Blackstone formulation helps us understand why we might set a high standard for conviction (beyond reasonable doubt), simply screaming at the internet that the PoI is for criminal trials and not for confirmation hearings doesn’t explain why we should have different standards.

To this end, I want to ask a new question that might help. You can call the this “Crip Dyke’s Question” but the rule being questioned should, I think, clearly be named, “The Lindsey Graham Formulation”:

Is it better to place ten rapists on the Supreme Court than have one innocent man serve his lifetime appointment in honor and privilege on a court of appeal one level below?

Tweet the fuck out of #CripDykesQuestion. Call your senators and ask their staff members this question. Go to debates and use the audience question time (or pre-submission of questions mechanism) to place this question before your senators.

This isn’t too late. This is what we have to do before the next confirmation hearing, and if we want the question to penetrate the public consciousness, we must start now.

Dishonest or Incompetent?

I’ll make clear again from the outset that I believe Dr. Blasey Ford’s allegation of an attempted sexual assault by Judge Brett Kavanaugh. I further believe that this is entirely sufficient to deny him confirmation to SCOTUS.

That said, I think that the more effective tactic to take in the media if one wants to get the sexist Republican Party senators to vote against his confirmation is not to stress Dr. Blasey Ford’s testimony more than it has already been stressed. No, it should continue to be covered at similar levels to now, but what needs to be ramped up isn’t that. It’s the argument that Kavanaugh’s testimony is by itself also sufficient reason to deny his confirmation. The Intercept (a publication for which my respect declined in proportion with the decline in my respect for Glenn Greenwald, but which nevertheless does publish some – perhaps many – good things) has taken a similar tack. In a recent piece, Intercept authors Briahna Gray and Camille Baker attempted to demonstrate to non-lawyers and non-law students just how damaging Kavanaugh’s testimony on its own ought to be:

KAVANAUGH’S APPARENT WILLINGNESS to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and dissembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

Note that here, if you’re not certain since they weren’t explicit, they’re trying to say that the excuse of misunderstanding a question does not save Kavanaugh. If he can’t parse the meaning of the questions as asked because of his own filters, then he won’t be able to parse other questions or statements that are necessary to resolve the questions at issue in cases that come before SCOTUS. Back to the Intercept:

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job.

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor?

“DUE PROCESS” MEANS fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, has thrown that into serious doubt.

Aside from the terrible phrase “parsing hairs”, Gray and Baker are dead on here. I expect the Republicans to ramble on about how bitches dems be lyin, and I think that they’ve frankly committed themselves to the fallout of their overt sexism and their overt stand against the idea that committing sexual assault might make one less fit for a seat on SCOTUS. However, I don’t think they’ve yet taken a stand to the effect that dishonesty under oath should not make one less fit for a seat on SCOTUS, nor do I think they’ve even thought about the ramifications of attempting to deploy the excuse of Kavanaugh misunderstanding questions.

Hammer your senators on the import of Blasey Ford’s testimony. However, if you’re calling your senators, I think you should also hammer them on these important issues of Kavanaugh’s dishonesty and his inability to parse important questions when the stakes are high.


[h/t to Mano for bringing the Intercept piece to my attention. I don’t normally read the website except when another outlet links to it and would never have found it without the writing of my FtB colleague.]