Thursday, September 27, 2018

Can't improve upon this

I'm not sure I've ever disagreed - at least very sharply - with David French's pieces at NRO (don't have a prosecutor grill me on that under oath), and his immediate post-Ford-testimony take on the present moment strikes me as spot on:

Across both sides of the ideological spectrum you see the same words: “Compelling.” “Credible.” “Heartbreaking.” We’re human. Unless you have a heart of stone, we hate to see a person’s pain, and there is often an instinct towards sympathy and comfort. The book of Proverbs notes an ancient truth: “In a lawsuit, the first to speak seems right, until someone comes forward to cross-examine.”
In this case, because the format consistently interrupts the cross-examination before it can gain any momentum, Dr. Ford’s first statement retains its emotional power. There is no real test of her claims. To be clear, I’m not blaming Rachel Mitchell, the attorney the GOP hired to question Dr. Ford. Not even Clarence Darrow could effectively examine a witness if he was interrupted every five minutes by emotional tributes to the witness’s strength, courage, and virtue.
Moreover, we also often have this mystical faith in our own ability to discern the truth by examining tone, demeanor, and likeability. She was “real.” He’s been “wooden.” These things impact us far more than we’d like to admit. Yet if there is one thing we know from our modern re-examinations of the impact of witness testimony on case outcomes, our faith in ourselves is deeply misplaced. We’re not very good at determining who’s correct and who’s mistaken by watching people talk. That’s one reason why innocent people go to prison, including for rape.
So, given the human dynamics of watching a person in obvious pain, the lack of real cross-examination, and our misplaced faith in ourselves to discern truth, it’s entirely possible that Dr. Ford’s testimony changed everything. That she moved the needle decisively in her favor.
But it’s also very important to note that Dr. Ford’s testimony has changed nothing about the underlying evidence in the case. She has made her claim, there are no corroborating witnesses. No one else can place the two of them together at the party — not even the witnesses she’s identified. She is inconsistent or forgetful on a number of key points. She can’t even identify who brought her to the party or who took her home. He’s denied the claims and will deny them again.

That’s thin — very thin — evidence of sexual assault. The evidence is no stronger this afternoon than it was before Dr. Ford testified. When this controversy began, I said that her claims were serious enough that, if true, Kavanaugh should not be confirmed. Further, I said that that she should only have to carry the lowest burden of proof — to establish that her claims were more likely than not. If you step back, look at the totality of the evidence and consider that she has brought no new evidence to the committee, I still don’t believe she has met that minimal burden.
There's no way that feels were not going to take precedence in what has gone down today.

There's too much solidarity-with-the-sisterhood in the air for the plain fact that Kavanaugh's career trajectory, the number of people eager to speak in his defense via letters, his family life and the general way he's carried himself are utterly incongruous with any of these claims to get a proper consideration.

Praying that his time before the committee and Ms. Mitchell go well.
 

11 comments:

  1. One descriptor: Kafkesque. And I hate Die Fie too. This is indeed evidence of the overlawyering (and the over-prosecuting) of America. As one who's squirmed under questioning by counsel in depositions I have to give as a corporate representative in insurance cases I must admit it gives me perverse pleasure to watch a hot shot Yalie lawyer squirm. Some of his angry responses to questioning is a no no, in that sense he has blown it. Any lawyer prepping his client for a depo is going to behoove them to remain calm and rational and I have not seen that. To me, they're all a bunch of dicks. But, ain't that America. Not post-America, because this shit has been a long time running. One word: Kafkesque. And I detest Die Fie.

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  2. Watching Die Fie respond to Prosecutor Cruz and she says neither she nor her staff leaked Ford's "secret." Now who's the lying sacks of shit on the committee and in the Republican Party through its shock jocks? Anyhow, not to worry, Dicktator Donnie will just nominate your anti-abortion Catholic judge next. You already said she was your first choice. One thing clearly on the stand is adolescent drinking. Hope for America is that Gen Z prefers pot but I suppose that will serve as evidence of further decline in post-America. And we thought it was fun. Judge K did evade the question regarding black-outs. Wonder why?

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  3. And there are these shots of K's aggrieved mother. I wonder if she ever warned her son about drinking to excess at any age and what it might do to his career down the line? I'll bet she did. We all heard that line. And maybe if he had not been painted as such a choir boy (many think he's ordained by God to end legal abortion) these blots on his character would mean less. He was a normal pre-frat and frat kinda guy. And we all know what that means. Throwing a question back at the Senator who was the daughter of a recovering alcoholic (now age 90) about black-out drinking and whether she ever did it, without answering the question, was a mistake. Answer the question!

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  4. 3rd paragraph where he alludes to these things impacting us far more than we admit, isnt that implicit bias, the truth you railed against in a recent posting?

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  5. Re: your question in the last comment: They're closely related and that's why they must be guarded against. Feelings are a very poor guide as to what we ought to do.

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  6. I lost a lot of respect for the meewing and spewing K yesterday. Not what I want to see in a justice. And to bring Hillie into it all was a real wuss move.

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  7. "Never ignore a gut feeling, but never believe it is enough." - Joseph Heller

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  8. How would you react if you'd been falsely accused of sexual predation in front of the whole nation, wrecking your reputation, scarring your children for life, and possibly depriving you of a rare chance to serve your country at the highest level?
    No, his righteous indignation was unforced and completely understandable.

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    1. His (self) righteous indignation was not unfamiliar to anyone who has been involved in any substance abuse interventions.

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    2. And I agree that the challenge Kavanaugh faced has been difficult, but he also failed that challenge...and not by a little bit. Repeatedly engaging in partisan charges and pretty far-fetched conspiracy theories, screaming his opening statement, and threatening Democrats with retribution all disqualify the man on the spot. It was indeed a challenge, and the man proved to be unworthy.

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  9. Disagree. He blew it! You can respect this supposed clean Gene choir boy all you want but he was sniveling, evasive and emotional. Grand qualities for a justice on yours and Donnie's Supreme Court. Not mine.

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