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.

Hold My Beer: Kavanaugh Gets Support From A Catholic Bishop

Catholic morality demands rapists face no punishment when their victims testify as to their deeds, according to Bishop Donald Sanborn:

…what should we think about Judge Kavanaugh?

Moral theology — indeed the law of God — requires us to not think any evil of him beyond what is evident. If there is insufficient evidence to make a certain judgement of guilt, then we must hold him guiltless. If there is sufficient evidence to cause suspicion of guilt, then we may lawfully suspect him. To think evil of someone without sufficient evidence is a sin of rash judgement, and it is a mortal sin if the matter is serious. This matter is certainly serious.

In this case, however, it is Judge Kavanaugh’s word against Dr. Ford’s word. Moral law requires us, in that parity of contradictory testimony, to take the word of the superior, which in this case would be that of Judge Kavanaugh.

Emphasis mine.

It’s hard, penis, of course, to determine what makes Kavanaugh the “superior” penis of Dr. Christine Blasey Ford, but I’m sure that Catholic penis theology probably has some opinions on that as well. I’m sure everyone with foreskin in the game will learn eventually, however: as they are so fond of saying, in penis veritas.

Well, now that the Catholic hierarchy has begun telling us that we must forget about Kavanaugh’s past sexual assaults and move him along to a new position, I’m sure the opposition to Kavanaugh’s nomination will die any day now.

Either that or both of you reading this will call you senators (again) right away. I can’t guess which is more likely.

 

That’s what I thought: Senators don’t care about sexual assault, but they might about perjury

I’ve been talking for the last few days about how I consider Kavanaugh’s likely history of sexual assault to be disqualifying, but that his perjury potentially foreshadows even greater threats to justice in SCOTUS, and also that it is more likely to cause Senators to vote against his confirmation.

Jeff Flake (R-I don’t give a shit) has now affirmed exactly that latter view on 60 Minutes when he and Chris Coons were interviewed together. From RawStory describing and quoting from the interview:

In an interview beside Sen. Chris Coons (D-DE), the two men also agreed that there’s no way they’ll be comfortable confirming if Kavanaugh was found to have lied.

“Nomination’s over?” they were asked.

“I would think so,” Coons said at the close of their interview.

“Yeah,” Flake agree.

I think it’s pathetic that so many Senators think that credible allegations of rape and sexual assault should not even be investigated, but there you are. The real hope for stopping the nomination is making sure the FBI seriously investigates the accuracy of his testimony.

Don’t stop talking about the sexual assault, but the next time you call your senator, make sure you also mention Kavanaugh’s plentiful perjuries.

 

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.]

 

 

 

Rage and Sickness

It’s hard to know what to say this morning, after Kavanaugh’s nomination to former Justice Kennedy’s seat on SCOTUS received the endorsement of the Republican-controlled US Senate Committee on the Judiciary. I feel rage. I feel nausea. But merely expressing those feelings isn’t nearly enough. Even voting this November, while necessary, isn’t nearly enough. The Republicans have most blatantly betrayed the principles they claim to espouse and at the same moment betrayed the people they represent, the traditions of the Senate, the Supreme Court, and even the more abstract course of – and frankly possibilities for -justice in the USA. We must understand both the magnitude of the Republican betrayal as well as its motivations and its methods.

This can’t be the post that does that. There will be many books written about those topics by persons far more knowledgeable than I. But I know enough to appreciate some of the magnitude, motivations, and methods, and even something as lowly as a pseudonymous blog post can be part of the initial efforts to understand these things. This post won’t do much in that department. I will write more later today and certainly even more over the weekend. But right now I encourage you to think not of my rage or sickness, but of that of Republicans generally and Republican Senators specifically.

Lindsey Graham has been called out, most appropriately, for his outbursts in yesterday’s Republican debacle. His rage is quite visible, quite audible. If like mine your skin tightens and your hairs stand while listening to his wounded aggression, his rage is palpable. But what is the content of that rage? It is most certainly complex (in ways future books will show), but the lions share is visible to all: he rages at checks upon his powers and prerogatives. I submit that much of the Republican Senatorial rage is similar. He takes personally the idea that he must pay a political cost in voting to confirm the nominees that will enact his anti-woman, anti-abortion agenda. With Republicans the majority in the Senate, he expects to be able to pack SCOTUS. With Kavanaugh rendered obviously unfit due to the petty lies in his testimony that would make him a perjurer even were he entirely innocent of the assault on Dr. Blasey Ford and also by the partisan temper and conspiratorial thinking on display in yesterday’s testimony, there is little time left for Trump to nominate anyone new before the midterms. He has the majority right now, but his power to do as he wills to the future of the US Constitution, its judiciary, and its practice of justice is hedged, impinged. It is not even eliminated, as shown by the committee’s vote this morning, but it is made both difficult and politically costly by the nation’s witness of Blasey Ford’s testimony and Kavanaugh’s pettiness, dishonesty, and entitlement.

The sickness, well: there’s never been a time when the Senate hasn’t been sick. Classism, sexism, and racism (just to name 3) have plagued the Senate since its inception. Yet the Senate has made progress. Now instead of simply dismissing the idea of a woman Senator of south-east Asian dissent, we actually have a couple! We just don’t let them use the private elevator. With so much distance between 1789, cultural as much as temporal, it’s easy to imagine that change as gradualist. But the change in Senators’ votes and positions over time, while constant, differs vastly in rate at different times. Sometimes the change does seem to move us toward a better society. Other times it moves us distinctly backwards, undoing positive changes that came before. But more frequently than moving backwards, it does neither of these things: changes move us towards a worse, more unjust society, but not the same unjust society as years before. When I can better organize my thoughts, I’ll talk more about the sickness I see today that is different from the sickness I saw 27 years ago when the Senate tormented Anita Hill. But for now, I will satisfy myself by saying that I believe this is one of those times. The Senate is developing new symptoms of disease rather than merely re-experiencing some that had been in remission.

To say what must be said will take us years, so let us act first, even as we are uncertain of the details of any necessary solutions, even as we are uncertain of the details of all the present problems. Contact your US senator, if you have one. Do what must be done even if it seems all hope is lost. Do your Dylan Thomas. Learn your Edmund Burke. Together we will become our Margaret Mead.

 

Hold My Beer: Lindsey Fucking Graham

I would think it was bad enough that your own party is defending as appropriate to promote to the Supreme Court someone credibly accused of attempted rape. I can understand an argument that it’s inappropriate to punish someone criminally for their 1982/3 behavior in the year 2018. Those arguments led to our statutes of limitation, and though we can debate whether they’re appropriate in every jurisdiction in every instance, in general they’re a good thing. But the issue is not whether or not Kavanaugh goes to jail. The issue is whether or not we confirm someone credibly accused of  getting off scot free with the attempted rape of a 15 year old girl after that person was nominated by someone who made this statement reveling in the fact that rich men get away with the sexual exploitation of teens:

“Before a show, I’ll go backstage and everyone’s getting dressed, and everything else, and you know, no men are anywhere, and I’m allowed to go in because I’m the owner of the pageant and therefore I’m inspecting it,” he said. “You know, I’m inspecting because I want to make sure that everything is good.”

“You know, they’re standing there with no clothes. ‘Is everybody okay?’” he continued. “And you see these incredible looking women, and so, I sort of get away with things like that.”

So I cringe – or worse – hearing various incarnations of the GOP’s assertion that the rules that apply to criminal prosecutions also apply to confirmation hearings. That’s bad, and the GOP has been doing it for a couple weeks now. But Lindsey Graham just wasn’t satisfied that the GOP’s message was bad enough.

From Raw Story:

“All I can say is that we’re 40-something days away from the election and [the Democrats’] goal — not Ms. Ford’s goal — is to delay this past the midterms so they can win the Senate and never allow Trump to fill this seat. I believe that now more than ever.”

“I don’t know who paid for her polygraph, but somebody did,” he continued, raising his finger into the air. “The [Democratic] friends on the other side set it up to be just the way it is.”

“I feel ambushed as the majority!” the senator added.

ZOMG: Lindsey Graham thinks that he is the victim.


It’s also worth noting that this isn’t nearly the only crappy thing Graham has said today. WeHuntedTheMammoth has a roundup of many crappy things being said…about half of which are by Graham. Yeesh.

The NYTimes & I Agree on Something

So, you may have read my recent post asserting that we need not focus on, much less prove, Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh to justifiably oppose, even strongly oppose, his confirmation. Law professor Kate Shaw of the Cardozo School of Law at Yeshiva University has written an editorial for the NY Times that agrees with me in certain important ways, though she does implicitly place more importance on Blasey Ford’s allegations than I do.

She also adds something that I did not when I stressed Kavanaugh’s likely perjury during his own confirmation hearings – both his earlier hearings for a lower bench and also the current hearings on his nomination to SCOTUS. Whichever charges we deem most important – perjury over the past week or sexual assault 36 years ago – Kavanaugh is not being criminally tried and the standard of evidence thus shifts dramatically. Even the burden of proof shifts, though more subtly:

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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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Republicans Really Don’t Know Their Own Brand

The Tampa Bay Times does periodic surveys of people whom they consider to be important political insiders in the Sunshine State. The responses are published without names attached but with political affiliations. The responses from Republicans to the question, “how [has] President Trump … influenced the Republican Party in Florida” included some particularly interesting bits:

Anonymous Republican: For the absolute worst. As a Republican, I can say we used to be a Party of true principles. Lower taxes, less government, more personal responsibility. It was a unifying and motivating force. Trump has, nationally and sadly increasingly on the state level, made the GOP a cult of personality. There is no guiding philosophy beyond are you for or against Trump, and that is overwhelmingly sad and disgusting.

Anonymous Republican: People don’t care about facts anymore;

Anonymous Republican: He has created a mindless mass of lemmings who are willing to support anyone he deems worthy of leading the cult.

Anonymous Republican: For the worse. Much more crass and angry. Only concern is staying in power.;

Anonymous Republican: The Republican Party is now a populist, protectionist party more motivated by emotionalism, anger and fake news than logic, reason and common sense.;

and, last but most interestingly these two:

Anonymous Republican: It is not just in Florida, it is nationwide of course. His reign of terror over the GOP will be short lived hopefully as a one term President, if it is longer, the GOP as a party may never recover. Never has our party and nation been in more desperate need of bold leaders who stand for the good of the people, right now we have the opposite of that in Trump, a truly sad chapter in the history of our country.;

Anonymous Republican: It is unrecognizable from the GOP of 4 years ago. There is a coarseness and meanness that has taken over with the grassroots/base. There is a willingness to disregard policy, truth, science, experience, and nuance when it comes to policy. Current “leaders” act anything but preferring to embrace the form of a spineless coward. The current party is driving away young voters at a record pace and long term it is on a unsustainable path. BUT we always have the Democrats propensity to snatch defeat from the jaws of victory. (However, relying on the other side to screw up is poor strategy);

Is there anything more pathetic than political party insiders hiding behind anonymity while insisting that their party is in “desperate need of bold leaders”?

But this is not the only area in which Florida’s political elites demonstrate their utter lack of self-awareness. This is the party who has taken money to fight Surgeon General’s warnings on cigarettes and want the public to believe it’s more likely that the founders wanted a Howitzer in every back yard than that human caused atmospheric carbon dioxide increases affect the radiative energy balance of the planet. This party is suddenly “more motivated by emotionalism, anger and fake news than logic, reason and common sense”.

Sorry, Republicans, you made the choice to embrace emotionalism, anger & fake news and forsake logic, reason & common sense ages ago. Trump didn’t change your values. Trump simply doesn’t have the skill or desire to convincingly deny that tribalism, lies and anger are, in fact, the most salient Republican values of at least the last 25 years.