By Robert Tracinski
Friday, September 28, 2018
There is only one fundamental dividing line in the
reaction to the televised hearings 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, to fill in many of
the gaps in her recollections, or 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.
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 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—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.” 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
constitute 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 charge 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.
