Before anyone jumps all over me...this diary is not some veiled support of Brett Kavenaugh. I am working through this thought process under the idea that it might help us better frame opposition arguments...and to speak about this issue with a bit more reason.
For the record, I believe Dr. Ford’s account 100%. I believe that Kavanaugh was an irresponsible problem drinker, who committed some pretty egregious mistakes while under the influence, which disqualify him from the seat. I also believe that he has committed perjury on multiple subjects, which would also justify his impeachment from his current seat. On a personal note, he disgusts me. He’s a perfect example of the toxic, entitled, prissy, sanctimonious, amoral straight white male who feels they are the best of the best of society, when in actuality their life experiences have made them weak and deficient.
Okay, now that we are all “disclaimered”…
Two possibilities: he’s lying, or he’s not
In this diary, I want to examine what it means if he’s telling the truth, and if he honestly believes what he is saying when he states that he never attended a party with Dr. Ford, and definitely did not attack her.
At the same time, I am not trying to create a false equivalency. I’m not saying there is equal probability to the lie vs truth question. Like most on this site, I think its very, very probable that he’s outright lying. So much so that I’m entirely willing to accept it as fact.
However, I’m very scientific minded. I believe in establishing alternative hypotheses, and testing them. As such, I have to admit that somewhere in all of this, there is some unknown probability that Brett Kavanaugh was telling what he believed to be the truth. Is that probability ten percent? One percent? I have no idea...and honestly either sound too high, but I’m too biased to make an assessment. So regardless what the chances are, what would it mean if he were being honest?
Why ask at all?
I know this will be a common question over this diary. We all think he’s lying, so who cares what it means if he’s not? But I think it does matter.
For one thing, the appropriate resolution seems pretty simple in the whole subset of “he lied” scenarios. If he was dishonest last week, that’s a crime, and he’s not qualified to sit on the bench, period.
But the appropriate resolution is less clear if he wasn’t lying. And whether he was lying or not, a lot of reasonable people believe he wasn’t, in which case how they process this will be different than how I process it. I feel like I should be able to speak the same language when addressing those individuals, so it feels appropriate to have an answer to the question — what is the right thing to do if he was telling the truth?
(Disclosure: no human is entirely honest, and that applies to me as well. If I were being entirely truthful, I would say that while I want arguments that persuade undecideds on this issue, I also want them so that I can make comments on TownHall and RedState that are ironclad enough to really piss them off, even though I understand they won’t change their minds, ha. But following my weeks of “McConnell doesn’t have the votes to repeal ACA” analysis, the despise me because they know I can be right.)
The possible scenarios in the truth subset
Okay, so let me think this through. In the subset of truthfulness, where we assume that his testimony about Dr. Ford was honest (and only that part...not the other questionable statements), what are the possibilities? They seem pretty limited. The ones I can think of:
1. He did assault Dr. Ford as described, but owing to his state of inebriation he truly doesn’t remember any of it.
2. He did assault Dr. Ford as described, but forgot about it for other reasons than alcohol, and was telling the truth.
Note: I can’t think of any other scenarios where the assault occurred as described, but where Kavanaugh could truthfully say it didn’t. I’ll discuss this further below. And yes, it’s all a stretch, which is the point of this exercise — to think about what it means if the improbable is true.
3. The assault occurred, and Kavanaugh knows, but the facts are so materially different as to what happened that his statements could be considered truthful. (Will discuss...yes, this is absurdly far-fetched).
4. The assault wasn’t perpetuated by Kavanaugh, and for whatever reasons he’s been blamed when in reality he didn’t do it, and he’s being honest.
Scenario 1 Analysis: forgot because he drank
In my mind, this seems the most likely scenario if (gigantic if) he were being truthful. He doesn’t think he did this because he doesn’t remember because he was drunk.
So what would this mean? It would mean, I think, saying that we don’t care if he remembers or not, he did something terrible and disqualifying because of bad choices he made under the influence. And not just that...even if he was honest about not recalling the attack, it would mean he misrepresented his drinking and the consequences of it...because there’s no way someone at one time conducted an assault under the influence that they don’t remember, but also forgot that they ever drank that much. Blackout drunks don’t forget that they’re blackout drunks, and they sure as heck hear about it from friends after.
So if he attacked Dr. Ford but forgot...that’s still entirely terrible and unacceptable. Maybe he forgot, but that’s where society steps in to weigh the evidence and judge.
Resolution: disqualified
Scenario 2 Analysis: forgot for other reasons
Not to get into a soap opera amnesia plot line, but let’s say he did assault Dr. Ford and then forgot for mysterious and unknown reasons. No, this doesn’t seem credible. But it would change things a bit, in that he’d no longer be lying about the drinking.
The problem here is that he’s still guilty of the assault. Maybe there’d be some defense if this were a criminal proceeding and we couldn’t get beyond reasonable doubt, but I think we can safely say that we can’t have people on the highest court who assault others and then forget, whatever the reason for that is. Even if it was a legitimate medical condition, this would be disqualifying, right? I can’t see any justification for seating someone under this scenario. And it’s an entirely unbelievable scenario that just leads us back to the same logic as the first scenario.
Resolution: disqualified, maybe a little less so, but it’s kind of a binary decision, so disqualified.
Scenario 3 Analysis: happened, just differently
Human beings bend the truth, it’s just something we do. In this scenario, I’m thinking about the possibility that Kavanaugh knows Dr. Ford was attacked, but there was something different about it so that he feels justified in denying the whole thing. (I’m not saying he IS justified, but that he FEELS justified. I’m sure there’s a pretty big gap with this guy on a routine basis).
What might that be? I don’t know...like I said, it’s far-fetched. I mean, maybe Judge attacked Ford and Kavanaugh was the witness. So he can honestly say ‘that didn’t happen’ because he means ‘I didn’t attack her because my friend did, but that’s not what has been stated so I have no ethical obligation to correct the record.’ Or maybe he attacked Ford, but Judge wasn’t there? Judge came in later? Maybe there was a third person in the room.
While I think this scenario is pertinent to consider, the list of how this could be the case immediately illustrates how problematic the scenario is. There is no situation I can think of where Kavanaugh kind of knows this happened, but not how Dr. Ford said, where his testimony would be justified or truthful. Every eventuality under this scenario would absolutely require Kavanaugh to elaborate under oath and state what actually occurred. Any reasoning he could make that he could say ‘it didn’t happen’ when it did, just differently, is just a slimy, immoral way to lie about lying.
Therefore, anything that falls in this category would be as bad as outright lying. Because that’s what it would be...a lie.
Resolution: disqualified, unquestionably
Scenario 4 Analysis
This is what a supermajority of Republicans believe, and a lot of independents, so we should consider this. What if this just didn’t happen as described? For whatever reason, no need to consider the hypotheticals, Kavanaugh just didn’t do it. It strains credulity to me, but what would this mean?
This is the only scenario where things get unfortunate if Kavanaugh is rejected. In this scenario, an innocent man would face consequences over something he didn’t do, and that wouldn’t be fair. (Ironic justice, perhaps, but that still isn’t justice).
But here’s the problem. We as a society have to judge how likely it is that this scenario is the case. If we are going to put this man on the Supreme Court, we have to make damn sure that this attack didn’t happen, because placing a man on the court if it did is deplorable. (Yeah, you heard me, deplorable).
But the probability that this didn’t happen has been narrowed considerably — by Kavanaugh’s own words and actions. He has demonstrably lied under oath over and over. If he’s lying under oath about why he threw up at beach parties, how could we ever trust that he’s telling the truth about the assault?
And set aside the lying to Congress for a moment. The reason that so many people find the accusation credible, even aside from the accuser and her account, is that we have lots of evidence that Kavanaugh was a problem drinker in his youth. He put himself in that situation. It was his decision to drink while he was underage, and to drink to excess at other times. We all know that teens make horrible decisions when they drink. It’s like the fifth fundamental law of physics. What else is society supposed to think when they hear about a drunk teenager, who we can verify drank frequently, and then hear a woman’s harrowing account of being attacked by that drunk teen?
We are still operating under this scenario, in which the attack did not happen. And yet, Kavanaugh’s social life and behavior and choices were such that even if it did not occur, it is still reasonable to believe that it did or could have.
And if it’s reasonable to think the attack could have occurred, even if it didn’t, then society cannot take that chance with this particular job. We cannot give this very special job to someone where this is even a remote possibility. Especially not when there are dozens of qualified alternatives who we would not have these questions hanging over them. It’s unfortunate, but unfortunate in the way it is when you don’t get the sales job because you don’t speak fluent Mandarin, and someone else who applies does.
If Kavanaugh didn’t do this, I’m sorry...being a party boy and being dishonest about that later creates a level of uncertainty that disqualifies him for the job.
Resolution: disqualified, somewhat unfortunately
Conclusions
I wrote this wondering if outlining these possibilities would change how I think about this issue. It didn’t. Dr. Ford’s testimony was so compelling that my view of what happened is pretty cemented in my mind. Kavanaugh, whether his actions were the result of inebriation or moral turpitude (or both), attacked someone in a manner that scarred her for life.
But I wanted to consider how I might view things if other possibilities were true. I racked my brain to consider all of the alternative truths that might be hanging out there. The problem is that in the end, all of my scenarios seem very unlikely. And even if any are true, I see them all as disqualifying. I can’t find an ethical basis for suggesting that Kavanaugh should sit on the court under any of these possibilities. Maybe that’s not fair, but life isn’t always fair, and sometimes things happen that prevent us from getting what we want, even through no wrongdoing of our own. The fact that society largely (and reasonably) believes he did wrong should be enough to disqualify him.
And in writing this, I came up with two thoughts:
1. If I had a kid in elementary school, and a credible witness came forward saying a potential teacher who was interviewing had sexually assaulted a child, under what conditions would I EVER think it was okay for that individual to teach my kid? Under what conditions would any parent?
2. Our justice system operates on a moral philosophy we sometimes verbalize as “it’s better for 99 guilty men to go free than for one innocent to be wrongly imprisoned.” I think a similar principle applies here, when thinking about the courts and the men and women we select to serve on them: it’s better for 99 good people to be rejected, rather than seat one bad person.
If Brett Kavanaugh is truly one of the 99 good people, which I doubt, then I am sorry but he should not and can not serve. And I suspect that it’s time for us to shift the debate more toward the sort of conversation I’m trying to have here. I think we’ve convinced most everyone we are going to convince that he did this and is lying about it. I think the next step to defeating him is to convince a large chunk of undecideds that he should not serve either way, and that even if he was being honest, he really has no place being on the court.
Wednesday, Oct 3, 2018 · 7:46:03 PM +00:00
·
Davey1107
When I wrote this, I was thinking about the possibilities from a purely logical standpoint, and didn’t really dive into how probable they might be.
A fellow Kossack has written a diary that examines memory loss from a medical perspective, so I’d add his work as an addendum to this diary. It’s an interesting read.