Ford v. Kavanaugh: Well said!

September 27, 2018
FEATURE ARTICLE
The Kavanaugh Hearings Are About Reason Versus Emotion
The Real Dividing Line in the Reaction to the Kavanaugh Hearing

by Robert Tracinski

There is only one fundamental dividing line in the reaction to the televised hearing about accusations against Brett Kavanaugh, and it's not solely a partisan one. It's the line between those who judged the hearing based on emotions and those who judged it based on reason. 

The testimony of Kavanaugh's accuser, Christine Blasey-Ford, added nothing of substance to the claims already reported. She was still unable to place her accusation at a specific time and place, she was unable to fill in many of the gaps in her recollections, and she was still unable to find a single other person supposedly present who could confirm any aspect of her story. It remains a vague claim with no corroborating evidence. 

Brett Kavanaugh was able to provide some evidence based on old calendars about where he was and wasn't in the general time frame, but absent any more specifics in the original accusation, this is of limited value. And somehow a Brett Kavanaugh doppleganger who was the real perpetrator failed to materialize. 

Based on reason and evidence alone, you would have to conclude that we have gotten no farther in the case and are not likely to get any farther. What is an FBI investigation supposed to so, other than to serve as a delaying tactic? Federal investigators would simply go out and interview all the same people who have already testified or given sworn statements. Given that the claim against Kavanaugh remains uncorroborated, I think the Senate has no choice but to confirm him. Not to do so would eliminate any standard of evidence and invite politically motivated false accusations against future nominees. 

But evidence and logic are not what we heard about in most of the reactions to the hearings. What we heard about is how the testimony made people feel. 

The attack on logic began before the hearings, with commenters pointing to quotes saying the case against Kavanaugh is "plausible" and "believable"--but providing no actual evidence that it actually did happen--and then describing this as "compelling." But "plausible" is the opposite of compelling. Direct evidence compels belief, logically speaking. Someone's speculations about what might have happened have no logical standing and compel nothing. 

Or consider the phrase you probably heard a thousand times today: that Kavanaugh should not be confirmed because he is "credibly accused." What does that mean? What makes the accusation "credible," and what evidentiary status does that give it? A vague accusation with no independent corroboration from the very people the accuser herself described as witnesses doesn't sound all that credible to me. 

But you will look in vain for any clear standard of what is "credible." It is not an evidentiary term but an emotional one. All it means is "this is something I feel like believing." 

People are not judging credibility based on evidence. They are judging based on how the two witnesses made them feel, which is to say that they base it on a purely emotional reaction--a reaction heavily influenced by partisan loyalties that prejudice you for or against the two witnesses.

So we get pure appeals to emotion like this one: "I can't imagine how many thousands of women, around the world, are in tears as they listen to Christine Blasey Ford's voice cracking." Brett Kavanaugh's voice cracked, too. Does that mean we should also embrace his side of the story?
The ability to jerk tears in the audience does not constitution evidence, and if all important issues are to be resolved by the test of who is a more charismatic speaker, then impartial justice becomes impossible. On this issue, Conor Friedersdorf makes a highly relevant point: "I've studied too many criminal trials that sent innocents to jail or that acquitted the guilty to trust that a mass audience can distill whether anyone is telling the truth or not by consulting their gut while watching testimony."
This was the problem from the very beginning. Everyone was talking about how each of the witnesses "looks" and about what's "sympathetic"--as if it's all about the feels, rather than evidence or logic.

When it's all about feelings, the logic must be bent and twisted to fit. So when Kavanaugh became emotional while describing his young daughter's reaction to this case, it wasn't proof of a man who loves his daughter. No, it was proof that he was abuser. Why? Because "The boyfriend that abused me cried a lot." Get the logic here? Because one man was abusive and cried in an attempt to get sympathy from his victim, then any man who cries is therefore an abuser. This line was repeated a lot, mostly by women citing an abusive man in their own lives, sometimes a father but usually an ex-boyfriend or ex-husband. 

It's fairly normal for people to project their own personal issues out onto politics in the hope this will make them easier to solve. (In fact, it only makes them harder.) A lot of women on the left have been making Kavanaugh into an archetype of the Generic White Male and projecting onto him their issues with men in general. Or they are acting as if all of life is a Social Justice morality play with any person you don't like cast in the role of the stock villain. 

Or there is the response that Kavanaugh's righteously angry response to the smear campaign against him is itself proof of his guilt: "Kavanaugh's unhinged, entitled rage is making it easy to imagine him grabbing a teenage girl, throwing her on a bed, and forcing himself on her while muffling her screams." So the ultimate proof of Kavanaugh's guilt is the fact that he defends himself. Which he is, in fact, "entitled" to do. 

This illogical and illiberal argument is being made by many others, including celebrated Harvard law professors--which explains a lot about how we got where we are. It's the ancient and time-honored "he acts guilty" standard. 

At this point, the accusations against Kavanaugh have become a classic example of what philosopher of science Karl Popper called an "unfalsifiable hypothesis." No matter what new evidence arises, it will reinterpreted, ad hoc, as evidence of his guilt. 

All of this is in service to a rather spectacular moving of the goalposts. If you want to know whether Kavanaugh's testimony succeeded, I will just point out that most commenters on the left have given up trying to convince us that he is actually guilty of assault and have moved the goalpost backward to argue that his vociferous defense shows that "even if he didn't assault Ford, he has just shown us that he lacks the temperament to serve on the Supreme Court." But no one is expected to have a calm, neutral, Spock-like judicial temperament in his own case. This is why judges are supposed to recuse themselves in cases where they are personally involved. But don't try to make sense of it. It's just another way of taking evidence that is not particularly favorable for the accusations against Kavanaugh and spinning it into confirmation of the conclusion you already wanted to believe.

I say that this was the dividing line in reactions to the hearings, but I am not claiming that people on the right are always rational or that people on the left are always driven by their emotions. If the right acted only on facts and reason, I'm pretty sure they would have nominated a different candidate in 2016, so this is a culture-wide, bipartisan problem. But this time around, Republicans are the ones who have a partisan interest in sticking to facts and logic--which is one the reasons this case has managed to bring together what one commenter calls "Trump fanatics and rational Trump critics." 

There has been a lot of debate recently, in discussions about the legacy of the Enlightenment, about the adequacy of reason, evidence, and logic as the basis for making decisions. The Kavanaugh circus, and the wave of illogic it has summoned up, is a reminder of the travesty that results when we rely on anything else.