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.]

 

 

 

Kavanaugh’s Nomination Should Fail, But Not Necessarily For The Reasons You Think

Just now there is a fucktonne of writing being produced about Brett Kavanaugh’s assault of Christine Blasey Ford. Here’s one on FtB. Here’s another. You can read them and the thousands of others like them if you wish. I’ve read some. I’m not going out and seeking more, because I’m not convinced that Ford’s allegation, even if proved true in every detail, is the best reason to kill Kavanaugh’s nomination.

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Bad Journalism 101: Perverted Motels Edition

Content Note: Child Sex Abuse

So, we here in my head are, as you might expect from the title of this blog, quite interested in both perverts and perversion. We believe that our blog name can and should be interpreted in 2 ways:

  1. Perverts deserve justice in the same way non-perverts deserve justice, and
  2. The course of justice must sometimes be perverted, that is redirected from what in the past had been considered the just outcome. After all, every major advance in justice has been denounced as a perversion of justice by someone.

But despite our interest in these topics, we never expected to have to defend motels from non-consensual obscene photography. Yet, apparently there is such a need. The following is an actual quote from Rawstory:

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You Are Not The Hero

While this is an unoriginal thought even though the topic is only 24 hours old, I still need to say it:

Hey, you! Author of that anonymous NYTimes editorial about how Trump is so bad but the Trump administration is so good? Yeah, you. You are not the hero.

PZ has mentioned this and gets it right, but many here remember Ed Brayton, whose writing I greatly respect, and Ed Brayton gets it wildly wrong. He says exactly the opposite:

I suspect that this kind of thing might well topple a lot of other dominoes and set off a reaction where a significant chunk of Republican politicians, advisers and thinkers decide that this is the time to take down the elephant.

And frankly, they would be heroes, and history would treat them as such.

No. When you pull out a gun on a kid playing in a park and then you put the gun back in your holster, you are not a hero. You’re Frank Freuding Garmback. You don’t get to be the hero just because you’re not Timothy Loehmann. You’re probably not a bad person, but you’re not a hero.

But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback: the editorial writer makes no effort to encourage invocation of the 25th. The editorial writer is engaged in apologia for the administration if not the President, and the anonymity, far from being a necessary capitulation to the exigencies of working for Trump, is in fact a tool to absolve every administration official and White House employee of their complicity.

Here’s the truth: the constitution gives two ways to take a madman out of the White House: impeachment and the 25th. If you recognize that governmental legitimacy and authority in the US flows from its constitution, then while you are an employee or appointee of the executive branch, you are duty bound to follow the directives of the President. To respond to dangerous incompetence for the office by subverting the authority of the sitting president rather than openly calling for the impeachment and removal of the president by congress or the invocation of the 25th and removal of the President by the Vice-President and the cabinet, you are shredding the constitution.

This author rejects, quite fully and fundamentally, the authority of the US Constitution, and defends as heroes the people who arrogate to themselves power legitimately given only to someone actually elected to executive office. These are not the actions of a hero. Nor is the use of anonymity to give cover to anyone and everyone who might possibly have written the editorial.

Quit. Invoke the 25th if you have the standing to do so. Openly advocate for the invocation of the 25th and/or the impeachment described in Article II, Section 4 and authorized in Article 1, Sections 2 & 3 (and quite possibly get fired for doing so).

Those are the ethical and effective options of someone who has put themselves in this position by seeking and accepting a job in this administration. The author chooses none of these.

And what is worse, though we don’t know the author’s identity (and, like PZ, I’m not interested in knowing it), it is most likely that anyone in a position to write such an editorial actually worked to put Trump in office. In this case, we’re not looking merely at someone who finds themselves faced with the possibility of losing a job and decides that betraying the constitution is preferable. We’re talking about someone who actively participated in the creation the very catastrophe which they want credit for partially ameliorating.

When you set a fire that burns a house and kills two people, you aren’t a hero because after the fire consumed the staircase you got two people out of a bedroom on the main floor. Yours in the blame for the deaths, not the credit for the rescue.

You are not the hero.

 


ETA: As is so often the case, someone else has written a pithier version of what I perseverate upon. In this case, it’s chrislawson over at PZ’s thread on this topic. Nice work, Chris. Very well done.

Edited: Enlightenment Liberal made me realize that this comes across as saying that one cannot ethically stay and subvert an administration. Rereading the post, I realized that what I was thinking at the time was not as clear in my writing as I would like: If you want to be a hero, you must stand in vocal opposition. There can be many reasons to stay in your job, keep your paycheck, and do your best to limit the harms of a Trump. But these are not the actions of a hero. So I edited the 1st sentence of the paragraph immediately following the paragraph with the Frank Garmback reference.

Originally that sentence began like so:

<blockquote>And the situation with the anonymous editorial writer is worse</blockquote>

The new sentence begins like so:

<blockquote>But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback</blockquote>

The “situation” is now spelled out as lionizing someone who came to power through participation in a rule-of-law and Constitution fetishizing party for publicly seeking praise for their rule-of-law and Constitution-subverting acts.

Hopefully the new sentence will communicate the background facts (about fetishization) that weren’t in the original post at all as well as highlighting (again) that the issue is about <i>being a hero</i>. Continuing to collect your paycheck and doing your best to subvert bad things might be ethically justifiable, depending on what you do and how you do it it might even be ethically praiseworthy to some minimal extent, but it doesn’t make you a hero.

First Amendment Issues are NOT (necessarily) Free Speech Issues

All freaky, kinky, queer women are human beings.

Not all human beings are freaky, kinky, queer women (more’s the pity).

So how is that related to the first amendment? The First Amendment (FA) protects more than just speech. It protects a total of 5 separate rights. Let’s take a look at the full text and then break it down:

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