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Kavanaugh-Ford: A widening societal division on justice

Uploaded: Sep 30, 2018
The public's reactions to Prof. Ford's accusations of Judge Kavanaugh highlighted an increasing division in what we as a society consider proper conduct in dealing with accusations and providing just treatment. Being able to agree on the principles of what is fair is essential to a functioning society, and I fear we are rapidly losing that.

I suspect that most of you have received your news from what has become a fragmented and partisan the media, and thus it was unsurprising that so many public comments were blindly partisan. For example, some of Kavanaugh's supporters were making arguments that he had already rejected, even denounced (example, "Boys will be boys").

It is discouraging that I felt the need to write these basics because not so long ago, I would not even considered people needing a prompt to consider what was happening. These basics should be above partisanship, but now seem to be easily discarded by many to the dictates of partisanship.

Note: The truth and credibility of this particular situation is off-topic here. A useful comment would require expertise in not just in the general field of psychology, but in the specialty of how memories are affected by trauma and the extended passage of time. It would also require personal knowledge of the environment of elite, private, single-sex prep schools in the Washington DC area in the early 1980s. I suspect that none of you readers meet these criteria, and even Prof. Ford doesn't meet the first one.

Formal vs informal justice systems: same basics:
Recognize that an unpopular law tends to be not just an ineffective law, but a bad law. Laws should be little more than a codification of what the public already accepts as being reasonable and just, with the formalization meant to provide consistency in its application. The formal justice system should not differ from the principles that the public use in everyday life.

Collective guilt, punishment, penalties:
The rejection of collective punishment goes back to ancient civilizations, such as seen in the story of the ^destruction of Sodom and Gomorrah^ (Genesis 18:13-32). However, through most of history, this seems to be applied only in the case of your own people, not enemies. ^Article 33 of the 1949 Geneva Conventions^ declared to be war crimes the collective penalties, reprisals, intimidation, terrorism ... against civilian populations. For example, before this it was common for occupying forces to execute civilians in response to sabotage, snipers and other guerilla activity.

For me and many others on the non-Left, it was deeply disturbing to hear so very many Democrats, "Progressives", ... talking in collectivist terms, saying that they or friends had a similar experience with some other male at a different time and place and therefore Kavanaugh must have done what Ford accused him of. How would you respond to a "They're all like that" statement if it were about a racial group?
Remember, I have said that I know enough to know that I don't know enough to have a valid opinion on the accusation, and I request similar self-awareness from you.

Evidence:
Science is one of the pillars of our civilization because it defines our most basic assumptions about how the world works -- no magic, no witchcraft,(foot#1) no micro-managing deity -- and thus how we approach the acquisition of knowledge.(foot#2) And this in turn is essential to our being able to have meaningful discussions. From an earlier time: "Everyone is entitled to their own opinions, but they are not entitled to their own facts." (Daniel Patrick Moynihan). While the phrase "your own truth" pops up at various times, this abomination appears to be restricted to inspirational speakers, advocates of divisiveness, and academics specializing in reality-distortion fields. Hoping it stays that way.

The phrase "different ways of knowing" traditionally included sensory perception (direct knowledge), memory (existing knowledge), language (knowledge from others) and reason (new knowledge from existing). Some current uses of this term also include faith, emotion, intuition and imagination.

The call to believe was the dominant theme among those supporting Ford and/or opposing Kavanaugh, with the two variations being extremely difficult to distinguish. I hope that this difficulty means that those calls were simply rationalizations of partisanship, and not a massive shift in how we evaluate accusations and other claims. However, if it is just a rationalization, that signals a weakening commitment to basic principles of our society.

Recall that the Cheney-Bush administration took the US into the Iraq War based on their beliefs, not only without credible evidence, but contrary to available evidence. Their supposed evidence was a combination of false confessions (obtained by torture), discredited agents, disproven claims ... This is not an invitation to discuss, but merely a reminder of how disastrous substituting beliefs for evidence can be.

Skepticism of witnesses:
Formal research and widespread experience has found witness testimony to be "notoriously unreliable", and therefore requiring either supporting evidence or careful examination. I found it disturbing that items that should have caused people to go "Whoa!" and re-evaluation their position didn't do that.

For example, when it was revealed that Ford had rejected a meeting here with investigators from the Senate Committee but later demanded an FBI investigation, you should have asked yourself if she was supporting the Democrats goal of significantly delaying the decision. If so, did this cast doubts on her accusation? You might say "No", that she was encouraged to do this by her lawyers and advisors who came onboard long after the accusation was registered. But do you have any evidence of that? If not, how do you assign probabilities to the conflicting scenarios?
Note: It later emerged that Ford's lawyers may have rejected the offer without consulting her, but I'm asking you to focus on whether the earlier situation triggered your skepticism.
Note: The Republicans' decision to deny a hearing to Obama's Supreme Court nominee Merrick Garland was myopic and displayed that they had no interest in governing, but only in power. Ditto for a wide range of other nominees during the Obama presidency. Same for the Democrats' delaying tactics here. However, while the Republicans damaged nominees by putting their lives on hold through a protracted confirmation process, I don't remember them indulging in the level of character and reputation destruction mounted by the Democrats.

Similarly, when Ford falsely claimed she was afraid to fly, she had become part of delaying the hearings. Think about whether and how this affected your thinking, and that of those around you.

Rejecting or ignoring credible causes for skepticism sends a definite message: You have decided to believe the claim and don't care about its truth. This in turn licenses others to infer that you don't believe that the claim is true (but not that you believe the claim is false).

Presumption of innocence is a foundation of the system of law that we inherited from the British. As Senator Kamala Harris demonstrated by berating Kavanaugh to enumerate things he didn't know, this is an important counter to prosecutorial misconduct, abuse and malice. (Aside: Harris and Senator Cory "not Spartacus" Booker made such negative impressions that I heard Democrats say that if either were to be the 2020 Democratic nominee for President, they would vote for Trump).

Even in judicial systems where the accused have to prove their innocence, a mere accusation does not meet the threshold for a trial. However, there are the aberrations, such as in totalitarian states (most notably Communist ones). And witchcraft trials. It surprised me that Democrats didn't seem to recognize the import of the references to witch-hunts in discussions of the Kavanaugh hearings.

^Blackstone's Formulation^: "It is better that ten guilty persons escape than that one innocent suffer."
The particular statement comes from the British, but the moral principle can be found in ancient times, also in the Genesis story of the destruction of Sodom and Gomorrah cited above. However, Democrats have been increasingly edging away from this. I put the watershed moment as the 2011 "Dear Colleagues" letter from the Obama Department of Education to colleges on campus rape, assault, ... It strongly pushed colleges to increase convictions at the expense of providing justice, and produced systems that so violate the American sense of due process that actual courts have labeled them "^Kangaroo Courts^". The defenders of this system claimed that punishing the innocent was essential because to deny questionable and false accusations would discourage actual victims from coming forward.(foot#3) Now we seem to be besieged by Red Queen wannabes shouting their version of "Sentence first--verdict afterwards" (Lewis Carroll's Alice in Wonderland).

Conservatives have a different problem in this area. Their belief in certain institutions leads them to ignore, even cover-up, their massive failings and outright crimes. For example, the many scandals of the Catholic Church. The police and courts are another common example: When convincing evidence has turned up that there has been a wrongful conviction, Republicans will often battle for years to prevent that evidence being heard in court. Their rationale is the feelings of the victim and victim's family family need "closure", that is, their feelings are more important than guilt and innocence. Yet they will turn around and blast Democrats for "Feelings over facts" without recognizing the hypocrisy.

Cluelessness:
After the past three years, I am not surprised to see that the Democratic Party leadership, and many visible Democrats, do not understand that the anger is not just from Republicans and other conservatives, but also from the former center-left. For many, this is about some of the most fundamental principles underlying civil society. Then there were the headlines and stories in the Democrat-aligned media on Friday that seemed designed to poured gasoline on the fire.

As to the Republican senators and other leaders, some of them may have mouthed the right phrases, but none seemed to have any enthusiasm for the principles themselves, but only for their immediate tactical use.

Conclusion / Reminder:
Remember that this is not, not, not about the accusation or the Senate hearings themselves, but rather about how the public has responded to the situation, and what that might say about attitudes about how such situations should be handled.

Preempting an anticipated accusation:
No, I do not support Judge Kavanaugh. When he was nominated, I read overviews and my impression was that he was too accommodating to corporations, executive power and the surveillance state, and that he overstretched Freedom of Speech to benefit corporations.(foot#4) But then how different is that from California's senators?

----Footnotes----
1. Witchcraft vs science:
Infamous ^video^-- which I have cited in earlier blogs -- from the University of Cape Town in South Africa.It includes "They believe that through the magic -- you call it black magic, they call it witchcraft -- you are able to send lightning to strike someone.Can you explain that scientifically because it’s something that happens?"
Other copies of the video can be found under tag #ScienceMustFall and at ^Science Must Fall?^ (meme explanation).

2. Science: Our belief about how our world works:
Consider this characterization of the ^Etruscans^by the Roman philosopher Seneca writing centuries later: "This is the difference between us Romans and the Etruscans:We believe that lightning is caused by clouds colliding,whereas they believe that clouds collide in order to create lightning.Since they attribute everything to gods,they are led to believe not that events have a meaning because they have happened,but that they happen in order to express a meaning."
Some speculate that their belief system played a significant role in their downfall by distorting how they responded to events, even causing decision paralysis.

3. Statistics on false rape accusations:
You will often see claims that these are exceedingly rare, 3% being the most common number cited.This comes from a study that used an exceedingly high threshold for what counted as a false accusation:The accuser had to formally confessed this to the authorities.Convincing evidence such as text messages, credible witness, ... didn't qualify.You might call this technique "Proof by definition"and treat it as a case of the logical fallacy ^Begging the Question^.

4. Overstretching Freedom of Speech to benefit corporations:
Such over-reach is not unprecedented:In the case of Burwell v Hobby Lobby Stores, Inc,the Supreme Court decision (5-4) seemed to be based on the assumptions that corporations have religious beliefs independent of their owners and stockholders -- a basic purpose of a corporation is to legally separate it from the lives of those real people.


----
An ^abbreviated index by topic and chronologically^ is available.


----Boilerplate on Commenting----
The ^Guidelines^ for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
A slur is not an argument. Neither are other forms of vilification of other participants.

If you behave like a ^Troll^, do not waste your time protesting when you get treated like one.

Comments

 +   26 people like this
Posted by 3 rights, a resident of Palo Alto Orchards,
on Sep 30, 2018 at 7:19 am

As a fellow "non-left", I agree with much that has been said on both sides about never really knowing what went on that evening.

My biggest concern was the temperament displayed at the hearing - please consider re-watching Judge Kavanaugh's opening statement. The Clintons? The biblical threat?

This man is super successful. Ridiculously well educated, a product of Yale. Smart as a whip.

He is not judge material, or at least, no longer.

There are 20 others on the original Federalist' list. Go back to one of them - far better choices, than the President's late 'add' now proving to be an error.

Mulligan.


 +   12 people like this
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 30, 2018 at 2:06 pm

Douglas Moran is a registered user.

I disagree about his not having judicial temperament.
As many have pointed out, withstanding extended personal attacks is very different from what is required of a judge. If even an iota of what Kavanaugh has endured over the past week happened in a court room, the attacker would have been jailed for contempt of court.
Similarly, if he had not responded emotionally, that too would have been held against him, either as evidence of guilt or of him being a psycho/sociopath.

From my own experiences, and of others, of being under extended attacks on your character, there comes a point where you either fight or psychologically collapse.

I was surprised that Kavanaugh was relatively restrained and didn't fight back harder. For example, Senators effectively demanded of him to request an FBI investigation, which was a variant on the classic "Have you stopped beating your wife. Yes or No". If it had been me, I would have turned it back on the Senator and asked "Are you willing to ask the FBI to investigate accusations of your decades-long involvement in pedophile rings? Yes or No." However, the reaction to his earlier use of this tactic (being blackout drunk) may have dissuaded him from this).

-----
As to the Federalist list of potential nominees, the assessment I have seen in the media was that he was the one closest to the center (always be skeptical of the media). When the short list came out, I don't remember any conservative voices arguing that he was the best choice, but rather supporting others as being better representatives of the conservative philosophy.


 +   25 people like this
Posted by Fairer than that, a resident of Another Palo Alto neighborhood,
on Sep 30, 2018 at 3:46 pm

“For me and many others on the non-Left, it was deeply disturbing to hear so very many Democrats, "Progressives", ... talking in collectivist terms, saying that they or friends had a similar experience with some other male at a different time and place and therefore Kavanaugh must have done what Ford accused him of. "

I listened to the hearings with no preconceived notions. I formed my own opinions by listening, as I tend to do.

The upshot of the hearings for me as a member of the public are that this guy should not be a judge, and it had nothing to do with what happened or didn't happen, but how he reacted and treated others (whether he was wronged or not).

I have never heard this kind of discussion (in your quote above) used to imply anything about Kavanaugh, only to deflect overreaching assumptions promulgated by sources like the White House with faulty reasoning intended to lead to biased conclusions: many people talk of how they had similar experiences but did not report, bringing it up because of criticism about Ford that this is some kind of plot because she didn't come forward earlier. Personal experience statements conclude nothing definitive about Ford or Kavanaugh, they only deflect ridiculous pronouncements intended to close down reasonable consideration. (Non sequiturs like “if she had been assaulted, she would have reported it to the police")

You are asking for a high bar, and yet you have assumed the limited information you heard means Ford lied about being afraid to fly. I have health problems that make it very difficult to fly, but I do fly and suffer for it, and I also often make sacrifices because flying is too difficult, but there are often tradeoffs, it's not black and white. And it is easier if I am going to be able to rest/relax at the end of it rather than doing the equivalent of being grilled in front of the world by angry partisans. If Congress asked me to fly out with little notice, I would want to know whether it was absolutely necessary to fly, too, and would be subjected to the same leading scrutiny if I brought up the health issues to refuse. It wouldn't mean I was lying.

The problem is people setting up flawed conditions of what means truth or falsehood, e.g, if she didn't report then she lied, or if she ultimately became successful, then she couldn't have suffered emotional trauma, if she flew at all, it couldn't mean she was afraid to fly. I'll admit to calling a hotline this week and bringing up sexual abuse by doctors in medical settings, not because this was in the news, but because of how upsetting it is to hear these kinds of false framings that led many of us not to report, or if we did, to be laughed at instead of taken seriously by police. My discussing that says nothing about what I have or haven't concluded about Kavanaugh and Ford (I think there must be an investigation), it only says what I feel about the false framing and partisan conclusions from that false framing.

Imagine if Ford acted as angrily as Kavanaugh, and refused to answer the questions with any kind of reasonable directness? I doubt we would be excusing her behavior like this. Women don't get to be angry and lash out when they are mistreated, we lose all credibility. I went into watching the hearings believing he might have been wrongly treated, but after watching how relentlessly evasive he was, and the political conspiracy charges crafted for a political base, and the outright lies he told about stuff that other people can check (like what Devil's triangle from his yearbook means) - I still had no idea where he stood in relation to the charges, but I definitely was shocked that someone with that kind of short fuse and bullying evasiveness would even be considered for such a position. I agree, if he didn't do it, he had a right to be angry. But if he wants to be a Supreme Court judge, he has to have a temperament that allows him to rise above that, that shows he can be diplomatic and not lash out with unsubstantiated charges that play to his existing biases or personal sense of umbrage. Certainly, Ford has suffered as much or more - yet she never railed about the Republicans getting a special questioner to try to trip her up, never spewed angry conspiracies about how Republicans had encouraged the reactions that forced her to flee her home and take her children out of school or derailed her life. Recall she never wanted to be public.

If time is of the essence, withdraw the nominee and provide one with a more judicial temperament. There are many from which to choose. I don't understand why time should be a constraint on establishing truth here, though, Republicans have only to look up how they handled Merrick Garland's nomination for negating responses to their charges, from their own party. This angry footstomping only makes them look like hypocrites.


 +   7 people like this
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 30, 2018 at 4:47 pm

Douglas Moran is a registered user.

Re: Fairer than that: para 3 "I have never heard this kind of discussion (in your quote above) ... Personal experience statements conclude nothing definitive about Ford or Kavanaugh..."

Many of the "personal experience statements" explicitly include that is why the speaker believes the accusations against Kavanaugh. And by the context they are presented in, so do the ones that don't explicitly say such.

In a parallel vein, I have had very negative experiences with men and women from Kavanaugh and Ford's background, but that doesn't factor into my assessment of them.

-------
Your comment reads like it is arguing backwards from the conclusion. This may not be the case, but that pattern has been established by the opposition to Kavanaugh and it would take a lot for someone to demonstration -- not just declare -- the contrary. This sort of poisoning of the process was the core of the famous 1957 movie Witness for the Prosecution.

> "...how he reacted and treated others (whether he was wronged or not)."

This applies to a very wide range of other politicians. For example, are you calling for the removal of Senator Mazie Hirono (D-Hawaii) for her blatantly sexist remarks? Or of Kamala Harris (D-CA) for her vile questioning (both in the Senate and when she was a prosecutor). Or ... (A comprehensive list would be impossible, and anything feasible opens one up to the charge of cherry-picking). This is a partisan talking point that you have adopted and undermines your credibility.


 +   20 people like this
Posted by Fairer than that, a resident of Another Palo Alto neighborhood,
on Sep 30, 2018 at 10:24 pm

I did not have any preconceived outcome before the hearings. Kavanaugh's belligerance, sense of entitlement (I should be on the court by now), and persistent evasiveness shocked me. I would not want a lower court judge with that kind of disposition. I have never heard either lawmaker you mentioned act like that, but that's not what we are talking about, neither of them is up for confirmation to the Supreme Court. I did not hear anything “vile" (pretty subjective word there, Doug) from Harris in this hearing.

How a person treats others (and makes assumptions about whole segments of society) is relevant to a Supreme Court appointment. Again, I was giving him the benefit of the doubt going into it and still am on the assault issue. But the way he behaved made me think it's time for another nominee. This is too important a position and institution to go to someone with such an injudicious temperament. He's going to have to be able to deal evenly and thoughtfully with people despite challenges, protests, things he doesn't personally agree with, maybe even personal insult.

Ordinary people in this country can only seek justice through processes that are often in and of themselves highly damaging and unjust, including delayed justice that denies justice. They don't get to behave like that or there are real consequences to whether they get justice. I highly doubt that Kavanaugh would be so understanding of any litigants in his own court who behaved like that.

He also went on a partisan rant that I think demonstrated a lack of fairmindedness. We are still one country.

I wanted to see you being fairminded in your post, too, but here you have made your response all speculation about me and never even addressed that Kavanaugh lied (Devil's triangle, etc) in ways that can be checked. In front of the judicial committee and the piblic. That alone should be disqualifying.

I appreciate that you are trying to be analytical about this, and you make very good points about how people make decisions. I remember during the Claremce Thomas hearings, a woman was asked her opinion, and she basically weighed Hill's credentials against Thomas's, as if that determined who was more truthful. You are right that humans often make decisions in highly questionable ways. But that's neither here nor there in regards to the way Kavanaugh behaved in front of millions. There are other nominees.


 +   12 people like this
Posted by Anon, a resident of Another Palo Alto neighborhood,
on Sep 30, 2018 at 11:27 pm

I'm sorry, but, I don't understand why it matters if Kavanaugh is legally guilty of sexual assault ("presumption of innocence", etc). The point of the hearings should be to understand why Kavanaugh -should- serve on the court.
[[Blogger: This misrepresents the "Advise and Consent" process.]]

No one is -entitled- to serve on the court.
[[Blogger: This is a distortion. Kavanaugh is entitled to a hearing, just as Merrick Garland was (but was denied by the Republicans).]]

There has been precious little evidence presented in Kavanaugh's favor from a conventional point of view.
[[Blogger: Absolutely false. Much was presented. Just because you may like what others saw as favorable doesn't change it.]]

[[ Off-topic: a highly partisan quote from a publication about details. ]]


 +   5 people like this
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 30, 2018 at 11:58 pm

Douglas Moran is a registered user.

RE: Fairer than that

> "...never even addressed that Kavanaugh lied..."

The particulars of this case are off-topic and I am trying to honor my own restrictions.

> "here you have made your response all speculation about me"

Apologies if that was your perception. The intent of the paragraph was to point out that the well had been so poisoned that it was hard/impossible to distinguish honest opinion from partisan advocacy. Look through your comment and try to identify major points that aren't already talking points. It's not just you. Anyone would have a problem making an argument on either side that wasn't tripping over partisan talking points (excepting those breaking new ground in crazy and conspiracy theories).

> "judicial demeanor"

Kavanaugh has been on the US Court of Appeals for 12 years. I didn't hear anything earlier in the hearings about him lacking proper demeanor. Quite the contrary. Consequently, I regard this argument as ill-founded if not disingenuous.
Also, the Supreme Court doesn't deal with witnesses or random lawyers -- there is a separate application process for lawyers to practice before the US Supreme Court. The arguments are about points of law. You aren't going to see an attorney telling a Supreme Court Justice that he is a lying attempted rapist.

Senator Kamala Harris (D-CA) being "vile"
Kamala Harris attempted to put Kavanaugh into a well-known perjury trap and when he refused to oblige, she effectively accused him of lying.
She asked him if he had talked about topic X with someone who worked for law firm Y. Yes or No. He replied that he had had conversations about X with various people, but he didn't know whether or not some of them worked for Y. Y was a large law firm, with hundreds of attorneys. Add in paralegals, support staff (clerical, IT ...), interns, miscellaneous contractors,... Although Harris knew of no such person, the trap was that if he said "yes", she would ask him who. If he said "no", he was vulnerable to some one stepping forward and saying that s/he had had such a conversation with him. Could Kavanaugh prove he didn't know that that person worked for Y (hard to prove a negative)?Even if he could, would that be exculpatory?
For me that alone qualifies as vile - she seriously abused her power and privilege. However there were other episodes in the same category.

Senator Mazie Hirono (D-Hawaii) sexist comment
"But really guess who is perpetuating all of these kinds of actions? It's the men in this country. And I just want to say to the men in this country: just shut up and step up, do the right thing for a change." (RealClearPolitics).
Substitute "women" for "men" and make your judgment.

Also, Hirono also seemed to say that because she disagreed with Kavanaugh decisions on the Court of Appeals, she believes the accusation of attempted rape: "I put his denial in the context of everything that I know about him in terms of how he approaches his cases" (CNN).


 +   17 people like this
Posted by Fairer than that, a resident of Another Palo Alto neighborhood,
on Oct 1, 2018 at 8:07 am

@Douglas,
You have made the same mistake with my opinion as you are accusing others of. You don't like what I have concluded so each time you have replied to me, you have concluded things about me and my decisionmaking process that aren't true.

I went to listen to the hearings, if anything, inclined to give Kavanaugh the benefit of the doubt. I did not expect to be confronted with that kind of evasiveness and injudiciousness. It is not beside the point to whether he should be a Supreme Court Justice that he lied in such a situation in obvious ways - he was certainly capable of being evasive if he didn't want to answer as became quite obvious. I didn't get my opinions from pundits, the well, analyses, I formed my opinion from listening. I didn't have time to listen to the pundits just after, either. I thought the news mostly did a poor job encapsulating what I heard and would not have formed my opinion from those sources.

I cannot answer your points about his background, because while everyone is watching this spectacle, it's unclear to me whether his background in a partisan political position has been properly vetted because of documents that should be considered but haven't been made public and because of how clear the majority has made it that they consider rushing a top priority. (I tend to be very conservative in the old fashioned sense, careful, considered, which is what we SHOULD be sure we are getting in a Supreme Court Justice.) Republicans should not be creating a door for this to continue after a confirmation, which is what I feel is unorecedented here. There are other good nominees.


 +   13 people like this
Posted by 3 rights, a resident of Palo Alto Orchards,
on Oct 1, 2018 at 9:03 am

[[Blogger: Note the all-to-common fallacy in the following: "some"/"many" can be disproved by a single example from the remainder. This is actually a bit worse, because that example is from outside the remainder: The Federalist Society isn't part of the media, but a source.]]


"As to the Federalist list of potential nominees, the assessment I have seen in the media was that he was the one closest to the center"

I have yet to hear anyone substantiate that claim. Even the head of the Federalist Society is on record saying use any of these judges, I approve them all, pick any of them, etc..

"Leonard Leo, the executive vice president of the Federalist Society, a conservative legal group that helped draft the list of candidates, insisted, "You can throw a dart at that list and in my view, you would be fine."

Kavanaugh was not on the Federalist' short list, he was added by Trump a year later: "Trump added five people to the shortlist last year." BI link Web Link

[[Off-topic]]


 +   5 people like this
Posted by Anon, a resident of Another Palo Alto neighborhood,
on Oct 1, 2018 at 11:28 am

Posted by Anon, a resident of Another Palo Alto neighborhood,

>> > I'm sorry, but, I don't understand why it matters if Kavanaugh is legally guilty of sexual assault ("presumption of innocence", etc).

To comment on my comment, Vox has an interesting op-ed/movie review of the 1980's "beloved romantic comedy" -16 Candles-. I've never seen the movie, but, the point is that social norms have changed drastically since the 70's/80's. (Thank goodness!) Kavanaugh "legally guilty"? Probably not. Legal "innocence" doesn't necessarily matter wrt the nomination. Kavanaugh clearly lacks the judicial temperament for the SC. "16 Candles"? Vox website culture/2018/9/27/17906644/sixteen-candles-rape-culture-1980s-brett-kavanaugh


>> > The point of the hearings should be to understand why Kavanaugh -should- serve on the court.
>> [[Blogger: This misrepresents the "Advise and Consent" process.]]

Here is an article by a well-known conservative regarding the process: Web Link One important point from the opinion that is discussed somewhat in detail:

"In deciding whether to block a nomination, senators also have every right to consider the nominee's ideology and judicial philosophy, not just his or her professional qualifications."

>> No one is -entitled- to serve on the court.
[[Blogger: This is a distortion. Kavanaugh is entitled to a hearing, just as Merrick Garland was (but was denied by the Republicans).]]

How is it a "distortion"? Senators have every right to consider the nominee's judicial philosophy and judicial temperament. If they don't consent they don't consent.


 +   4 people like this
Posted by Just wondering, a resident of Barron Park,
on Oct 1, 2018 at 11:53 am

Doug, since you so often represent yourself as logical and rule-abiding, why don't you observe normal punctuation practice on this blog?

You have bold and italics and links in addition to all punctuation.
Are you so "special" that normal writing isn't possible?

e.g., >> [[Blogger and
>> > and )]]

[[Blogger: There are two formatting languages provided for this blog: One for the original post and the bloggers comments, and another for other commenters. The language for the blogger allows for bold, italic and a different treatment of links. However, many special characters that are treated as normal characters in others' comments are treated as formatting commands in my entries. And there are serious bugs in the formatting language that are unpredictable, so I frequently have to do patches with work-arounds.]]


 +   8 people like this
Posted by 3 rights, a resident of Palo Alto Orchards,
on Oct 1, 2018 at 3:13 pm

a-widening-societal-division-on-justice

What better way to measure a societal divide? Unfortunately, my Left friends are crowing...



Polling:

Quinnipiac poll: ... showed opposition to the Supreme Court nominee has grown since last week's hearing before the Senate Judiciary committee where Kavanaugh defended himself against accusations of sexual misconduct.

Overall, 48% of respondents oppose Kavanaugh's confirmation, up from 42% who said the same in early September.

Opposition among female voters is higher, with 55% opposing his confirmation, a jump from 47% before the hearing.

The views of male voters were largely unchanged, with 40% now opposing his confirmation versus 37% in September.

The poll also found voters are finding Kavanagh's accuser, Dr. Christine Blasey Ford, more credible after her emotional testimony before the Senate Judiciary committee where she alleged Kavanaugh sexually assaulted her during a high school party in the 1980s. Forty-eight percent of voters say they tend to believe Ford, while 41% believe Kavanaugh.

- September 27-30 and surveyed 1,111 voters nationwide with a margin of error of +/- 3.7 percentage points.


 +   14 people like this
Posted by CallingASpade, a resident of Crescent Park,
on Oct 1, 2018 at 3:22 pm

Douglas Moran, reading your posting, the comments and your responses to them leads me to conclude you are no pragmatist but a ideologue engaging in self-deception he is a pragmatist. Why do I say that? Not one of the different points, enumerated by different individuals, influenced or persuaded you any from your position, even though all of those points were reasonable, fair, and likely to persuade an unbiased person. Enough of your imposing your delusions on the public! Can you blog under anything other than as a pragmatist?


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Posted by Douglas Moran, a Palo Alto Online blogger,
on Oct 1, 2018 at 3:50 pm

Douglas Moran is a registered user.

RE: CallingASpade: "Not one of the different points .. influenced or persuaded you any from your position..."

I have not stated a position on Kavanaugh's confirmation. I have stated that I have substantial disagreements with his legal positions and I have stated that he deserves a timely hearing. Anything beyond that is in your imagination.

The focus of this blog has been on how I believe people should be thinking about this decision.
CallingASpace's comment is an example of the all-too-pervasive tribalism that is powering the divisiveness of the title. Criticism of the logic of a position becomes opposition becomes ...
I see people I know to be Center-Left being described in the media as AltRight (= White Supremacists) because they have criticized the Left on particular positions or tactics.


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Posted by Douglas Moran, a Palo Alto Online blogger,
on Oct 1, 2018 at 4:05 pm

Douglas Moran is a registered user.

RE:Anon:
> >> No one is -entitled- to serve on the court.
[[Blogger: This is a distortion. Kavanaugh is entitled to a hearing, just as Merrick Garland was (but was denied by the Republicans).
How is it a "distortion"? Senators have every right to consider the nominee's judicial philosophy and judicial temperament. If they don't consent they don't consent.


Notice that my "entitled to a hearing" is misrepresented as "entitled to confirmation".


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Posted by Douglas Moran, a Palo Alto Online blogger,
on Oct 1, 2018 at 4:15 pm

Douglas Moran is a registered user.

RE: Anon
> >> > The point of the hearings should be to understand why Kavanaugh -should- serve on the court.
>> [[Blogger: This misrepresents the "Advise and Consent" process.
...
"In deciding whether to block a nomination, senators also have every right to consider the nominee's ideology and judicial philosophy, not just his or her professional qualifications."


"Advise and Consent" as applied to Presidential appointees was originally meant as a review process for qualifications and disqualifications. However, as the federal judiciary increasingly became a legislative branch of the government (and potentially the most powerful), more scrutiny was justified. However, I know of no agreement on how much more.
The pattern seems to be that both parties regard political positions as disqualifying for the nominees of the other party and out-of-bounds for their own nominees.


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Posted by Former PA resident, a resident of Mountain View,
on Oct 1, 2018 at 4:39 pm

Doug: Over and again I see you pose nuanced issues, asking us readers to step out of familiar clichés and try, instead, reasoning from first principles (with warnings like "I know enough to know that I don't know enough to have a valid opinion on the accusation, and I request similar self-awareness from you").

That stands out, even compared to such a fellow Embarcadero-Media blogger as Diana Diamond, whose essays I often find perceptive and who is another writer "thinking about this decision." Yet Diamond in a current post simultaneously "feel[s] bad about what happened . . . the anger, the terrible partisanship," then in the next sentence declares, not for the first time, "One of the two interviewees was lying" -- no allowance for the other possibilities (from, e.g., "how memories are affected by trauma and the extended passage of time" or the basic difference between a sincere belief and objective reality).

Did Diamond not realize that projecting your own limiting assumptions in that way may well contribute to "the anger, the terrible partisanship" she decries? Did she also suddenly forget all those people, not long ago, who believed three Duke University athletes were rapists based on an allegation without other evidence, or that a U. of Virginia student was gang-raped at a fraternity (the accuser offered vivid details)?

Unfortunately, even this blog with its painstaking logical microscope often evokes not thoughtful discussion of the issue presented, but offhand comments that ignore most of what you wrote, ignore the subtlety, ignore the whole point, and instead just regurgitate the writers' never-to-be-examined preconceptions. Or, try to impress us all with their ability to google up talking points supporting those preconceptions. (Not that it's a consolation, but the comments on the other blog I mentioned are worse; and rather than try to manage them, Diamond lately just lets them degenerate to back-and-forth name-calling, then blocks further commenting.)


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Posted by Longtime Resident, a resident of Another Palo Alto neighborhood,
on Oct 3, 2018 at 1:35 pm

Doug wrote:
"The pattern seems to be that both parties regard political positions as disqualifying for the nominees of the other party and out-of-bounds for their own nominees."

I think that's true for the Democrat Party whose members circle the wagon almost always, but it appears less for the GOP that have a history of voting for qualified candidates, such as Kagan and Sotomayor, though disagreeing with their ideology.

Interesting topic & discussion. Well-presented initial ideas, by Doug.


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Posted by PA Grandma, a resident of Community Center,
on Oct 4, 2018 at 5:31 pm

[[ Off-topic. Declarations of opinion on the specifics.
Reminder: This is not a discussion of the pros/cons of this particular nomination, but about what such discussions say about how the public approaches them.
1. Our two senator are already decided on how they will vote, so discussion here is irrelevant.
2. The national discussion reached a point long ago where it is difficult to *not* perceive a person's argument as "tribal" rather than a considered opinion. The fragmentation of media means that many of us are predominantly hearing the positions of only one tribe, thus making us *appear* tribal.
However, listening to media from multiple tribes can make one discouraged about each's poor quality.
]]


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Posted by Gus L., a resident of Barron Park,
on Oct 5, 2018 at 5:29 pm

There is a Kavanaugh confirmation get together tomorrow at the Masters Grove just south of Stanford Stadium at 7:00pm Saturday evening.
we were asked to Keep signs respectful.


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Posted by PA Grandma, a resident of Community Center,
on Oct 5, 2018 at 9:44 pm

Let's try this again. I figured there was more than an even chance that you would remove my post. You seem to think that everyone should listen to all voices before we make up our minds about what is going on in the country. That is fine as long as the facts presented by all concerned are the truth. Unfortunately that is not the case in this day and age, even in Palo Alto. Witness Putin's [[removed: off-topic, hyper-partisan ]]

[[ Blogger: I believe that many voices need to be listened to in order to determine the truth. Limiting voices to only those that supposedly represent the truth is either unworkable or a rationalization for silencing the opposition.]]


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Posted by resident, a resident of Adobe-Meadow,
on Oct 6, 2018 at 10:12 am

I think this particular situation is a referendum on each person's personal experiences and then dumping that experience on one person - Kavanaugh. Our mayor had to add her experience as has the congressperson for the San Mateo area. So every one is dragging out their own experiences to be part of the overall discussion. However we are now talking about the court system and it appears that congress is trying to make the court system do their job. Congress does not want to deal with tough issues so they are trying to make the court do their job. CA is topic in point as a recent article in the paper discussed the amount of money involved in the numerous law suits the state has instituted against the federal government. Personal responsibility is being over run by mob rule here.


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Posted by Resident, a resident of Another Palo Alto neighborhood,
on Oct 6, 2018 at 11:12 am

It is now a year since the Me Too hashtag and the media have been covering the differences that the year has made and the high number of people in the public eye who have lost their jobs and been disgraced by what has happened in the past.

The truth is that in just a year society has changed. Whether it is a follow through of the Catholic priests that shocked the world, or the explosion of the internet molding opinion and news, it is clear that the same types of things will not happen again or if they do they will be caught in the bud.

Thinking back to Bill Clinton and Monica Lewinsky affair (two consenting adults) and the lies around that, or JFK and Marilyn Monroe, are we honestly going to have future scandals? What happened in the past and was even acceptable in the past will not be allowed in the future in the court of public opinion. We have moved on.



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