• Requiem for Justice: “Credible Accusation” and Brett Kavanaugh

    September 26, 2018

    Tags: , , ,
    Posted in: Democracy, Trump




    Without the votes to reject Brett Kavanaugh, and after a failed Spartacus stunt or two, a strategy ripe for 2018 emerged– he’s a witch! How do we know he’s a witch? Just see how vehemently he denies it!

    Well, maybe not a witch, that’s so 17th century. But a rapist is 2018, where a Resistance-charged #MeToo mob can be convinced denial is proof of guilt and evidence is unnecessary.


    (This is published before the testimony of Professor Ford and Judge Kavanaugh on September 27)



    Though we will somehow move on from Kavanaugh no matter the ending of his confirmation, those problems do not go away gently. Like those claiming it’s great news the First Amendment doesn’t apply to private companies, allowing non-progressives’ free speech rights to be dumped in the trash, claiming because Kavanaugh’s confirmation wasn’t a trial anything goes – particularly the weaponized use of “credible accusations” — is making us incapable of rational participation in civic life.

    “Credible accusation” is not a legal standard. But in 2018 politics “credible” has become a pseudo-standard with enormous power handed essentially to a mob buttressed by traditional and social media, especially when coupled with another new hashtag standard, #BelieveWomen (morphing into the more dramatic #BelieveSurvivors.) They are meant in the best of intentions to correct injustices of the past. They are used now under the worst of intentions as political weapons. No past mistakes are resolved by defining credibility as an emotional reaction to an accuser’s story, twisted for partisan political ends.

    How partisan this all is is made clear when the new rules are applied only in cases of sexual assault. We are not admonished to believe women are more accurate witnesses in income tax fraud cases, even against white male Republicans. We are not told to believe women face no challenges of politically motivated accusations around shoplifting incidents. We are not admonished to believe women are incapable of lying, misremembering, exaggerating or making a mistake in water rights disputes.

    This all allows a unitary actor declared “credible” by default (there seems to be no allowance for a non-credible accusation of sexual assault in 2018) to initiate harm simply by pointing a finger. It really is conceived by progressives as just that easy: “Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him,” wrote the New York Times.

    And when the public tires of the one accuser, dig around until you find another. Send Michael Avenatti, the Fagin-like wrangler of Trump-era accusers, to round up as many as needed. Without the need for corroboration, they are not hard to find in bulk. Under the Kavanaugh standards, nearly any person can destroy anyone among tens of thousands of people they went to high school or college alongside of, or ever worked with. Not convinced? In the comments below, leave the details of your next scheduled job interview. And then be prepared to prove you were not in a specific room four decades ago if you want the job, because someone might make a call.

    Of course these are confirmation hearings, not a trial, some say, gleeful the written rules of law don’t apply and they are free to create new standards and expedient practices to fit the needs of the moment. But that is a gross misunderstanding of the “rule of law” which will haunt America past Kavanaugh.

    Like free speech, fairness, and justice, rule of law is a philosophy that underlies a just society, not merely something partially codified in dusty books. Rule of law is a way of living together under a known set of standards, equally applied, with changes broadly supported. Things like the accuser rightly bears the burden of proof. Jobs, respect, property, and freedoms are not taken away by accusation. Claims of innocence are not treated as proof of guilt.

    In Kavanaugh’s case, no evidence has been presented other than the accusations themselves. Whether written to a Congressperson, told to a therapist, or mumbled to a friend, in the end the circle is a circle that points back to a single person, the accuser herself. That’s repetition, not corroboration. Kavanaugh stated the events did not happen. For the past four decades there was no “she said” until a handful of Democratic senators forced Kavanaugh to deliver a “he said.”

    With Kavanaugh, his unambiguous denials are by definition not credible, as the inverse of Believe Accusers is to Disbelieve the Accused. Kavanaugh has been repeatedly asked for more details, somehow a more persuasive denial, of something he says never happened. The task set before him was to prove a negative, then do it again when a new accuser was produced with an even vaguer scenario from years ago. Give us more details of the trip to Paris you never took!

    We were warned. Franz Kafka, in The Trial, has his main character, known only as K, taken to jail without ever being told what his crime might have been. “I’m not guilty,” said K. “There’s been a mistake.” “That is how the guilty speak,” replied the priest counseling him.

    It seemed any defense at all was wrong. “Though Kavanaugh has been careful not to slime Ford, his denial of the incident impugns her anyway,” wrote the Atlantic. When asked if there was anything a truly innocent Kavanaugh could do to prove his innocence, Senator Tim Kaine replied: “That’s kind of very hypothetical.” Jennifer Rubin in the Washington Post claimed it didn’t really matter what Kavanaugh said, it wasn’t even in his hands: “It’s not simply that Kavanaugh must be convincing — Christine Blasey Ford has to seem unconvincing.” Matthew Dowd at ABC took that even further and claimed it didn’t matter what either party testified, simply that “Let’s believe the she… For 250 years we have believed the he in these scenarios. Enough is enough.”

    Reason and judgment become subordinate to a social and political agenda. The point is to take advantage of alleged victim-hood before it’s been proven, to use assumed victim-hood to shut down questioning whether there even is a victim. In this mindset Kavanaugh should have been finished months ago when the first accusation appeared anonymously, or maybe it was really all over in 1982 that very night at the high school party, and the rest of this, including his decades on the bench, has been unnecessary epilogue.

    It all tracks with a dire situation in our society where people are increasingly unable or unwilling to listen to different viewpoints as forces inside America have succeeded in turning people against the once-sacred ideal of free speech. Now, speech, fairness, and justice are no longer goals or ideals, just tools to be manipulated expediently to serve political ends. “That’s offensive!” (or sexist, or racist) is an accusation, but it is also understood as evidence itself of the truth of the accusation; why would the accuser be motivated to lie? Aren’t all opinions valid, even if the opinion becomes an accusation? How can a self-absorbed individual leave mental space for her own thoughts to be… wrong? The accusation is enough to demand resolution. Take that and expose it to shrewd Democratic politicians and you get the Kavanaugh confirmation process. And likely the next one, too.

    This is very dangerous territory for a nation claiming to fear the loss of the rule of law. In the worst days of racial injustice, evidence-free accusations of rape from a white woman sent groups of black men to be lynched, her testimony as unquestionable as virtue itself. During the McCarthy era, mere accusations of communist ties were used to destroy political enemies; questioning that meant you were unpatriotic. Scholars find evidence accusations during the infamous Salem witchcraft trials were used to settle land disputes, with questioning the accusers seen as a direct affront to God. In my time in Iraq, an accusation of al Qaeda affiliation from a tribal leader being courted by the U.S. could bring a Special Forces night raid down on a neighbor of his choosing. There are dark lessons here.

    The Democrats have managed in about a week to take the very serious business of #MeToo and turn it into a partisan weapon. In the extreme, they propose no common humanity, simply a society of rapists and their enablers, and victims and their allies. Kavanaugh, the recent process demanded, is more than unqualified for the Court; he is a rapist and liar, unqualified as a human being. Which side will you vote for? It might create a Blue Wave, or it might drive people to vote Republican as a matter of self-defense, more soul-crushing negative partisanship to the body politic.

     

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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • John Poole said...

      1

      I watched the Clarence Thomas confirmation hearings. Anita Hill seemed highly credible but she was also “unlikable”. The men in the room plainly disliked her and it was not because she was black or female. I also felt that Thomas should have not been confirmed for being so clueless as to hit on a co worker who clearly had no interest in having sex with any man. That was my take (I have no idea what the men at the hearing surmised). Will the Kavanaugh accuser be more likable thus producing a different outcome? Credibility and likability are deeply intertwined whether we think that is just or not.

      09/26/18 5:47 PM | Comment Link

    • Rich Bauer said...

      2

      “This is very dangerous territory for a nation claiming to fear the loss of the rule of law.”

      IWhat planet have you been living in your fifty plus years? The only rule this country follows is “might makes right.” That is the rule the shitbag majority in the Senate follows by refusing a hearing for a Dumbocrat candidate and gaming the hearing on the sex assault charges for their candidate. Damn, those yellow pain pills are rotting your brain.

      09/26/18 7:36 PM | Comment Link

    • J.L.Seagull said...

      3

      I don’t understand exactly what you are saying in this post. If there is no proof beyond a reasonable doubt, does that mean we should continue to operate as if no rape has occurred? Can you clarify your position on what this means for past incidents, e.g. Jimmy Savile?

      09/27/18 5:14 AM | Comment Link

    • J.L.Seagull said...

      4

      Or, for a more apt comparison, Roy Moore. He also denied all accusations. Would you have voted for him?

      09/27/18 5:32 AM | Comment Link

    • John Poole said...

      5

      The Republican interviewers want to know beyond a reasonable doubt if Kavanaugh will serve their party’s conservative agenda “for life”. The Democrats already know beyond a reasonable doubt that Kavanaugh will never serve their interests as long as he lives.
      The charade of a supreme court justice supposedly serving the interests of the nation as a whole instead of one party’s core doctrine would have to end if the “for life” award was dropped from the job application.
      J.L. Seagull. the hearing is not an election where regular folk vote their opinions.

      09/27/18 8:32 AM | Comment Link

    • J. L. Seagull said...

      6

      Indeed it’s not, but like in an election, the Senate’s vote will be based on their judgment of this man’s character.

      09/27/18 12:10 PM | Comment Link

    • Rich Bauer said...

      7

      Why would a corrupt, immoral country like US be in a position to judge a judge on his character? In this theater of the absurd with the Orange clown directing the shots, expect it to end in a farcical tragedy: Rosenstein and Kavanaugh are dead.

      09/27/18 2:16 PM | Comment Link

    • John Poole said...

      8

      J>S> Seagull. Every single Democrat except for one I believe felt Bill Clinton’s character was sterling in their impeachment vote. Oddly two Republicans believed him! Character judgement tendencies seem to be highly partisan.

      09/27/18 3:40 PM | Comment Link

    • J. L. Seagull said...

      9

      I certainly hope that we can reopen the books on Slick Willy Clinton today. He was never part of the solution.

      09/27/18 7:26 PM | Comment Link

    • Rich Bauer said...

      10

      “It all tracks with a dire situation in our society where people are increasingly unable or unwilling to listen to different viewpoints as forces inside America have succeeded in turning people against the once-sacred ideal of free speech.”

      Yes, like alternative facts.

      09/28/18 7:41 AM | Comment Link

    • Rich Bauer said...

      11

      Kavanaugh missed his true calling: catholic priest.

      09/28/18 7:56 AM | Comment Link

    • Rich Bauer said...

      12

      Kavanaugh says he vomits easily. Watching the puke come out of his mouth makes anyone vomit.

      09/28/18 8:31 AM | Comment Link

    • Rich Bauer said...

      13

      The one thing Kavanaugh said everyone can agree is Hillary Clinton is the reason we are in this situation today.

      09/28/18 9:48 AM | Comment Link

    • John Poole said...

      14

      Bauer: More than “A woman scorned” (Hillary needing personal revenge for losing in 2016) the Democrats are lashing out in self destructive and unproductive ways. They are so riven with repressed shame that they are now as debased as the Republicans.

      09/28/18 10:29 AM | Comment Link

    • Rich Bauer said...

      15

      The bitch just won’t die. She keeps turning up like Bill’s herpes.

      09/28/18 11:28 AM | Comment Link

    • Rich Bauer said...

      16

      Speaking of a venereal disease masquerading as a politician, has Demented Don ever not defended an accused sex predator?

      09/28/18 12:43 PM | Comment Link

    • Rich Bauer said...

      17

      “It all tracks with a dire situation in our society where people are increasingly unable or unwilling to listen to different viewpoints as forces inside America have succeeded in turning people against the once-sacred ideal of free speech.”

      Yes, dire. People can believe anything they choose. But Reality will always trump Alternative facts.

      Item:
      Pennsylvania State University scientist Michael E. Mann noted that experts previously have warned that “business-as-usual” emissions would cause the global temperature to rise 4-5°C or 7-9°F by the end of the century, which, as the Post pointed out, would produce “catastrophic” consequences for the planet and its inhabitants.

      “With this administration, it’s almost as if this science is happening in another galaxy,” Rachel Cleetus of the Union of Concerned Scientists told the newspaper. Although federal researchers have clearly asserted in recent research that human activity is producing dangerous planet-warming emissions, as Cleetus put it, “that feedback isn’t informing the policy.”

      As our Demented leader says, what does it matter when we are all dead.

      09/28/18 6:08 PM | Comment Link

    • John Poole said...

      18

      Bauer: “Simmah down” (SNL). Watch A SMALL TALENT FOR WAR an episode from the ’80s Twilight Zone reboot on YouTube.

      09/29/18 9:17 AM | Comment Link

    • Kyzl Orda said...

      19

      “This is very dangerous territory for a nation claiming to fear the loss of the rule of law. In the worst days of racial injustice, evidence-free accusations of rape from a white woman sent groups of black men to be lynched, her testimony as unquestionable as virtue itself. During the McCarthy era, mere accusations of communist ties were used to destroy political enemies; questioning that meant you were unpatriotic. Scholars find evidence accusations during the infamous Salem witchcraft trials were used to settle land disputes, with questioning the accusers seen as a direct affront to God. In my time in Iraq, an accusation of al Qaeda affiliation from a tribal leader being courted by the U.S. could bring a Special Forces night raid down on a neighbor of his choosing. There are dark lessons here.

      The Democrats have managed in about a week to take the very serious business of #MeToo and turn it into a partisan weapon. In the extreme, they propose no common humanity, simply a society of rapists and their enablers, and victims and their allies. Kavanaugh, the recent process demanded, is more than unqualified for the Court; he is a rapist and liar, unqualified as a human being.”

      The politicization, or using the stifling tactic, of accusations is a dangerous slope. It is odd that rape and assault are being used to take down political enemies — but are the laws being changed to prevent this? What are our leaders doing to ensure a level playing field in the courts and with juries, who are often reluctant to condemn frat guys who are the accused?

      I don’t see a rush to fix the laws on assault. Where are our lawmakers on this? Society should not be taking these cases into its hands — so many things can go wrong with this social media mob frenzy. Meanwhile, it’s still okay to issue death threats? Blasey Ford stepped forward – her claim should be investigated. But anyone who issues death threats against accused, accuser, or victim – should be tossed in jail. Death threats are illegal — but why is it no steps are taken to address this problem. Rule of law breaks down when the law is weak and society takes matters into its own hands.

      If an injustice has occurred, it should be investigated free from partisanship and mob pressure — which is what I agree with being said. I am very concerned I do not see lawmakers rushing to fix the rape and assault laws and throwing out the statute of limitations could be a good start not to mention impediment to violators.

      It’s also concerning — why can’t investigations occur if it is just one victim stepping forward? Why is it suddenly ‘the real deal’ if multiple people step forward? It’s like in the government — it will pay attention to class action suits more than a single suit. Yet so often, there are hundreds or thousands of single suits — it’s just easier for the authorities to ignore these.

      The courts and law enforcement should not be used to settle political disputes or be abused by politicians. On one hand, I am glad people are discussing these issues via social media — but at the same time, some ToS needs to implemented such as — listen and consider both sides before posting, don’t rush to judgement, and ask — what is NOT being shared or said publicly that I don’t have access too but would be a factor for consideration.

      I hope the democrats will be just as mindful when the show is on the other foot — maybe this is the reason why Republicans and Democrats are not rushing to fix the rape and assault laws. Who cares if one minion is outed or accused? Let some blood run once in a while; and keep the system broken to protect the guilty

      State has long had a problem of making decisions on the side of the harasser and either the victim was counter-accused, drummed out or paid money to keep quiet and drop the case. Bonus, the perp seemed to get ‘reassigned’ to a nice position. When is this going to be fixed?

      09/29/18 11:11 AM | Comment Link

    • John Poole said...

      20

      Kyzi. Thank you greatly for your comments.

      09/29/18 1:28 PM | Comment Link

    • Rich Bauer said...

      21

      The guy showed the world he is a political hack. That should disqualify him from traffic court, much less the Supreme Court.

      09/29/18 4:13 PM | Comment Link

    • StarKNakedTruth said...

      22

      As I have posted elsewhere…

      Under the new normal rules, anyone can be accused of any crime and because there’s an accusation;

      IT MUST BE TRUE. GUILTY! GUILTY! GUILTY!

      No evidence, no eye witnesses, no stinkin’ facts.

      Roll out the guillotine mes aimes!

      09/29/18 9:24 PM | Comment Link

    • Rich Bauer said...

      23

      Yeah, what he said. – Joe Paterno

      09/30/18 10:07 AM | Comment Link

    • Rich Bauer said...

      24

      If Kavanaugh is a sexual predator and not just your average Irish drunk who can’t get it up while blacking out, then, like Bill Cosby, there are many other victims out there. So even if the angry Irish drunk gets confirmed, the Democrat takeover of the House will Benghazi this Irish Drunk that he may be right about his Hillary conspiracy.

      09/30/18 11:55 AM | Comment Link

    • teri said...

      25

      State Dept. produces a movie-style propaganda poster in a tweet to announce Pompeo’s coming televised comments on Iran. Poster is complete with picture of missile, title (“Outlaw Regime”) and star (Michael R. Pompeo).

      I hate these people so much.

      https://twitter.com/statedept/status/1044671176990167041?s=21

      09/30/18 12:00 PM | Comment Link

    • Rich Bauer said...

      26

      Teri,

      The pompous idiot sent out a State memo instructing the proper usage of commas. Here is a comma suggestion:

      Fuck you, your fucking stupid boss, and go back to Kansas, you Kochsucker- PERIOD.

      09/30/18 12:16 PM | Comment Link

    • Kyzl Orda said...

      27

      Nothing like an Iran scare right about now. Should take our minds off things.

      Let’s see if the Dems also fall into line – again since both parties are the vanguards of national security. ALot easier than putting words into action and fixing the laws on rape and assault.

      Fighting for democracy abroad, not at home

      09/30/18 2:29 PM | Comment Link

    • John Poole said...

      28

      SNL smugly mocks Kavanaugh’s appearance and is clueless that spoofs are counterproductive. Kavanaugh as a sitting SCOTUS would indeed be a requiem for American style jurisprudence.

      09/30/18 10:07 PM | Comment Link

    • Rich Bauer said...

      29

      SNL? LOL. Who watches that crap anyway? Last Week with John Oliver is required viewing.

      10/1/18 8:09 AM | Comment Link

    • Rich Bauer said...

      30

      “It might create a Blue Wave, or it might drive people to vote Republican as a matter of self-defense,..”

      Right. So the White Nationalist Party is threatened by a bunch of women who object to being sexually assaulted? At least it has Lindsey Graham to protect its virtue.

      10/8/18 9:29 AM | Comment Link

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