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Sunday, September 30, 2018

SPECULATION


Inasmuch as I cannot think of anything else, I will speculate on the possible outcomes of the Kavanaugh affair.   Let us be clear: at this point all the matters in the short run is three votes in the Senate:  Manchin, Collins, Murkowsky [I assume Flake will vote yes in the end, unless something turns up that derails the entire matter.]

With that said, what are the short term and long term possibilities?

1.         Mark Judge caves to the FBI and say that the event described by Ford occurred pretty much as she described it.  If Judge does that, I predict that in his version of the event he is trying successfully to stop Kavanaugh, not abetting him.  If Judge rats Kavanaugh out, I would expect Kavanaugh to get wind of the news and withdraw his name from nomination before any thing comes out, angrily accusing the world of destroying his life, his family, and his reputation.  Behind the scenes he cuts a deal with McConnell that he will withdraw and save the Republicans the political carnage of a floor vote on condition that he keep his seat on the DC Circuit.  I think this is a possibility, on which I can put no estimate of likelihood.

2.         The FBI turns up all manner of slimy stuff, but nothing definitive.  Then Murkowsky probably votes no, but Collins?  She is between a rock and a hard place [assuming, as I do, that she has no actual conscience whatsoever.]  I do not think she can get re-elected in 2020 if she votes yes, but she will be primaried if she votes no.  Her best chance may be to vote no and appeal to Maine Democrats to vote for her in the primary.  She will make a cold eyed decision.  If she votes no, so will Manchin.  If she votes yes, Manchin will be free to vote yes, because the nomination will go through regardless of how he votes.  Once again, I cannot estimate the probabilities.

3.         The nomination goes through.  Kavanaugh immediately takes his seat on the High Court, making his SCOTUS colleagues right and left intensely uncomfortable behind their bland exteriors.  At this point, I predict, we will see something truly unprecedented.  After Kavanaugh is seated, a series of new allegations will surface.  Large numbers of people who have known Kavanaugh, both men and women, will tell credible stories about his appalling behavior not just during his prep school and early college days but later in his life as well.  I am absolutely sure such behavior exists and will come out.  The news media will not “move on.”  Remember, Kavanaugh will join the court the day after the vote, which means four weeks before the election.  He will be the poster child for Democratic candidates campaigning for everything from Governor and Senator to City Council and Dog Catcher.  This will not die away.  Impeaching and removing a Supreme Court Justice is a non-starter.  Can Kavanaugh stand the heat?  I do not know.  Perhaps he and Thomas will form a small support group for Supreme Court sexual abusers.

As the old Chinese curse has it, may you live in interesting times.

22 comments:

David Zimmerman said...

Impeachment of a sitting Supreme Court Justice Kavanaugh may not be such a "nonstarter." We should recall that Abe Fortas's resignation from the Court was precipitated by precisely the threat of impeachment, for an offence considerably less egregious than the allegations against Kavanaugh [a conflict of interest involving acceptance of a trivial amount of money, I recall].
So, perhaps Professor Wolff's possibility #3 would not be so devoid of hope for Kavanough's removal from the Court as he suggests.
One can only hope so, since, the more Trump limits the scope of the current FBI investigation, the more likely that the Yale legacy will reach the Court.

MS said...

I am going to go out on a limb and make a different prediction: After the FBI has concluded its investigation, Trump is going to pull Kavanaugh’s nomination.

If Ms. Ramirez tells the FBI what she previously reported to The New Yorker, she will allege while they were at Yale, Kavanaugh exposed himself to her and placed his penis near her face. Sen. Feinstein asked Kavanaugh if the allegations by Ramirez were true; Kavanaugh testified they were not. Even though witnesses questioned by the FBI do not answer questions under oath, lying to the FBI is a criminal offense. There will therefore be a presumption that Ramirez has told the truth, and her statement will contradict Kavanaugh’s testimony.

The FBI will also interview Leland Keyes, Ford’s female friend whom she identified as being at the party, but was downstairs when Kavanaugh attempted to rape her, with Judge cheering him on. Prior to the hearing, Keyes stated she did not remember the party and did not know Kavanaugh. Kavanaugh claimed Keyes’ statement refuted Ford’s allegation, when it does not. Her lack of memory is not a refutation. Her claim she did not know Kavanaugh could also have been true – people attend parties w/o knowing everyone present. Keyes has revealed she is willing to be interviewed by the FBI and though she still does not remember the party, she states she did know Kavanaugh and believes Ford. If she affirms this statement to the FBI, this reinforces Ford’s account and weakens Kavanaugh’s denial.

Prior to the hearing, Judge submitted a letter to the Committee, written by his attorney, asserting he did not remember the party in question, but he regarded the accusation as out of character for Kavanaugh. He requested he not be compelled to testify, claiming he had nothing relevant to offer. Kavanaugh asserted Judge’s letter constituted a statement made under penalty of felony that refuted Ford’s account. It was neither a statement under penalty of felony, since it was signed by his attorney, nor did it refute Ford’s accusation – it was just an assertion of lack of memory.

Judge will likely only repeat to the FBI what was said in the letter. This will not refute Ford’s accusation; but will help Kavanaugh to the extent it vouches for his character. Alternatively, he may assert he does remember a party at which he and Kavanaugh were present, but Ford’s accusation is false. Although I believe Ford’s allegation Judge witnessed the attempted rape, Judge will not admit this, since it would make him an accomplice.

There are 2 Republicans critical to the confirmation – Collins and Murkowski. If Judge continues to assert he has no recollection of such a party, they will be confronted with 2 statements by women contradicting Kavanaugh’s testimony. If there are no additional hearings to allow the Committee to question these individuals, then I cannot see Collins and Murkowski voting to confirm Kavanaugh. (If FBI interviews Swetnick, Kavanaugh’s prospects are even worse.) Even if Judge denies Ford’s accusation, Collins and Murkowski will be faced with 2 women contradicting both Kavanaugh and Judge. Under those circumstances, I still cannot see Collins and Murkowski voting to confirm w/o additional hearings. Sen. McConnell will realize he does not have the votes to confirm Kavanaugh w/o additional hearings.

Trump will not want additional hearings. He is running out of time to get a conservative judge confirmed before the Nov. election and before Jan., in the event the Democrats win the Senate. Trump will therefore pull Kavanaugh’s nomination. I predict he will then nominate Amy Barrett, a judge on the 7th Circuit Court, a professor of law at Notre Dame, and a devout Catholic. Since she is female, Trump will believe he is minimizing the risk her past holds any surprises relating to sexual impropriety. Judge Barrett has made clear she is pro-life. It will be harder to prevent her confirmation than it was Kavanaugh’s. (She has a significant different problem regarding her judicial philosophy that could derail her confirmation.)

David Palmeter said...

Even if Judge doesn't change his story about the attempted rape, he is likely to acknowledge his partying/drinking to excess behavior with Kavanaugh and others, thus refuting Kavanaugh's characterization of his high school years as consisting of playing on the football team, captaining the basketball team, studying so he'd be first in the class, and saying his prayers the rest of time.

This could well get rid of Kavanaugh; Trump could pull the nomination, or Kavanaugh could withdraw "for the good of the country." MS correctly points out that there is plenty of time to get another conservative through the process. There's no realistic way the Democrats can stop that. From the Republican point of view, I would think the thing to do is move on to somebody else, somebody that Collins and Murkowski could vote for without a lot of home state blow-back. No need to pressure them to make a vote that would hurt them politically, when there's a long list of Federalist Society clones of Goresuch and Kavanaugh readily available.

LFC said...

This comment relates to the previous post in which Prof. Wolff writes that he was engaged in "people-watching," rather than psychoanalysis, when he drew conclusions about Kavanaugh's character, and the various pressures he was under when growing up, based on his norm-breaking or "deviant" behavior when testifying before the Judiciary Committee. (I'm putting the comment here because the other thread is already long.)

Prof. Wolff claims that he was doing no more than drawing common-sense inferences based on behavior. For example, in the days before cell phones, if you saw someone walking down the street talking loudly to himself or herself, you could infer the person was possibly mentally ill. Similarly, RPW says, he watched K's testimony and drew common-sense inferences.

This claim is unpersuasive (I was going to say "disingenuous" but I think "unpersuasive" will do).

Prof. Wolff was not people-watching. What he was doing was constructing an entire sketch of Kavanaugh's presumed emotional and psychological development as a teenager and young man -- a sketch informed by, among other things, Freudian notions about instinctual repression -- on the basis of having watched several hours of televised testimony.

Now, the sketch in question may be correct, in whole or in part. Or it may be incorrect. And I don't care whether you call the sketch "armchair psychoanalysis" or something else. But the idea that this is "people-watching" -- no different from the snap commonsense inferences one makes every day when one sees people walking down the street -- is simply wrong.

MS said...

LFC,

I understand your taking issue with the reference to “people watching,” but I believe the term was used as a metaphor, like my use of “cocktail party” to describe the functioning of this blog.

Yes, it was not exactly like people watching, since it was not conducted based on in person observation. But I suspect it was not just based on Judge Kavanaugh’s performance at the hearing. It was probably also based on various reports in the media about Kavanaugh’s upbringing, his academic history, etc. It may also have been based on J. Kavanaugh’s interview on Fox News.

Moreover, it was an exercise in intellectual analysis of a prominent person’s personality and character and an attempt to reconcile J. Kavanaug’s adamant, passionate, and apparently truthful denial of Dr. Ford’s accusation with the equally persuasive testimony of Dr. Ford.. We often engage in such speculation (I believe Prof. Wolff would agree it was speculation, but rather educated speculation) about, for example, Hollywood celebrities based on media reports. What caused the marital breakup between Ben Affleck and Jennifer Garner; is Mel Gibson really anti-Semitic; etc.

You seem to be suggesting that there is something inappropriate and/or unfair in publicly engaging in such speculation, that it may be erroneously tarnishing J. Kavanaugh’s reputation. But most evaluations of a public figure’s personality or character are speculative, unless one personally “knows” the public figure, and generally, few of us do. So are we to forego all efforts to better understand such people out of caution for getting it wrong? In this case, for example, I have offered a different explanation – I believe J. Kavanaugh is lying. Prof. Wolff has chosen to be more charitable, and in keeping with that charity has sought to offer a different explanation that would portray both Dr. Ford and J. Kavanaugh as being truthful. I see nothing wrong or inappropriate in that.

s. wallerstein said...

As MS and David Palmeter affirm above, Trump is likely to dump Kavanaugh or to pressure Kavanaugh to withdraw his candidacy.

Trump has no special loyalty to Kavanaugh (nor to anyone) and we've seen beforehand that he changes his mind quickly and unpredictably.

That way Trump can name another rightwing Supreme Court Judge before the midterm elections, one who is more likely to pass the Senate.

LFC said...

MS
I was not suggesting it was wrong or inappropriate. The word I used in my original comment on the matter was "hazardous." That word does not mean wrong or inappropriate.

s. wallerstein said...

LFC,

I more or less agree with you. In the previous thread I explained my point of view more completely. It's hazardous, as you say, to venture long psychological explanations of the motives of public figures, especially when political passions are at their height, thus, making it hard to analyze public figures "objectively".

Anonymous said...

LFC is getting at the limits of the theory of mind, an adaptation that homo sapiens and its ancestors relied on to survive on the African savanna. It might serve us well when crossing the street and with more complex interactions among people we know, but beyond its local survival function it rapidly breaks down. It cannot scale to many individuals, and it leads to misleading narrative explanations in history.

MS said...

LFC,

I am not nitpicking. I have a high regard for your academic credentials and your scholarship in the area of international relations. I am writing the following in a critical, but not pejorative, frame of mind.

To say that some activity is “hazardous” means that it is prone to engender hazards. What are the hazards with respect to engaging in the intellectual pursuit of trying to figure out the psychological motives of a prominent figure’s conduct, such as J. Kavanaugh? Well the hazard is that you will get it wrong. Is this hazard greater than the possibility that, especially if the speculation is an informed one, based on knowledge about the person’s background which is publicly available, that one will get it right?

And even if one gets the analysis wrong, what is the hazard engendered by an erroneous theory? That one will wrongly tarnish the reputation of a prominent figure? If this is what you are contending, then you are indeed saying that such speculation is wrong and inappropriate. Is there any other hazard? I cannot conceive of any. Moreover, the theory propounded by Prof. Wolff is not “gossip” – like that criticized by Father Flynn in the movie Doubt, which he compares to taking a pillow, ripping it open, and disseminating the feathers into the wind, with the inability to find and recover the feathers that thereafter land in unforeseeable places. Prof. Wolff was not disseminating gossip, an accusation, for example, that J. Kavanaugh had committed an attempted rape – J. Kavanaugh was already accused of that. Rather, he was offering a potential explanation of how J. Kavanaugh could truthfully believe that he had not committed this act, and still be mistaken. The explanation may be erroneous. If so, what, precisely, is the “hazard” in that? Although I do not agree with it (as I say, I believe J. Kavanaugh does remember the incident and is lying), it is a plausible, alternative theory – and, in fact, may be correct. Since there is no way of knowing, what is the hazard in offering a plausible explanation of a prominent figure’s enigmatic conduct that is either correct or erroneous?

Michael S said...

It's also (a commonplace that) context is important: these are comments on a blog post, for you and I; a blog post, for Prof. Wolff. Kavanaugh's confirmation process is also not a trial, but something like a job interview (though not - contra plenty of tv talking heads - actually (only) a job interview). If (e.g.) a senator pronounced on the particular psychodynamics of a Supreme Court nominee, during the hearing, would have just been odd, and likely not very effective - but that's about it.

Tendentiously: unless it's a legitimate complaint about too much weight given to expressed hunches and unsubstantiated instinct-avowals in a public setting, and/or something that relates to Habermasian norms of public discouse (which would still be limited, and disputable, obviously), or (often rightly) pointing out that in some specific contexts, certain factors are (in general) too likely to distort perception that it's best to adopt a general rule not to rely on them (though, again, this would be of limited application - e.g. applying to someone only qua responsible citizen), then usually if someone complains about another person discussing their reflective best sense of another person (if the occasion of this discussion is itself legitimate (assuming it can sometimes be)), then it's because either (a) of their own insecurity at the prospect that they are in fact visible to the world, all the time (not an unreasonable or unncommon insecurity; but an insecurity nevertheless); and/or (b) they are in fact a little bit or a lot blind to the people around them, and don't realise how much people leak if you just look.

Michael S said...

Also N.B. The SNL skit - illustrating the truth that comedy (inter alia) often cuts through where intellectualisation (e.g. refined analyses of character) falls flat. Sometimes, someone is just a bit ridiculous, what they say is just stupid, and is funny. As Jerry Seinfeld says (correctly), you can't argue with a laugh.

Mobius Trip said...

No one laughed when the Clinton’s were mentioned!

Howard Berman said...

Anybody who got a job recommendation from Donald Trump would have several strikes against him- plus Kavanaugh was a little testy, feisty and unhinged in his self defense- he clearly isn't ready for Prime Time or the Supreme Court- he totally lacks judicial temperament- I'd rather have Giulliani as a nominee-
Leiter linked to a law professor taking apart Kavanaugh's self defense better I could- but we have limited information on this guy and he made a very bad first impression and you can't trust the Republicans in Congress- they're Machiavellian ideologues and will do anything for power.

Anonymous said...

This nomination would be withdrawn by the president and he will use it as a pawn in reorganizing DoJ and FBI leadership. This is where Rod Rozenstein's job may be on the line.

Michael S said...

The replication of Kavanaugh's contempt-sniff was insufficiently appreciated. But you also can't argue for a laugh (and not every stupid thing is funny).

MS said...

Let me explain what I meant in my comment above that Amy Barrett has an issue w/ respect to her judicial philosophy that could (but I acknowledge is unlikely to) derail her confirmation should she be nominated.

Barrett’s academic background is exemplary. She graduated magna cum laude from Rhodes College (English literature major), a small liberal arts college in Tennessee that is given high marks by the Princeton College Review. She graduated summa cum laude from Notre Dame Law School and clerked for J. Silberman, a liberal judge on the D.C. Court, and Justice Scalia. She then taught law at Notre Dame. She has a somewhat Barbie Doll appearance (this is not sexist – look at her picture), but she is a Barbie Doll w/ brains, which makes her, confirmation wise, a formidable threat.

Barrett is a devout Catholic. She is a member of Faculty for Life, a pro-life group at the Notre Dame Law School. She signed a joint letter in 2015 to Catholic bishops which supported the Church's teachings including "the value of human life from conception to natural death," and that family and marriage are "founded on the indissoluble commitment of a man and a woman". In 1998, Barrett wrote an article in which she opined judges could recuse themselves w/ respect to cases which presented issues that conflicted w/ their religious convictions. Note, she stated “could,” not “should.”

During her confirmation hearing for the 7th Circuit, she had a somewhat controversial exchange w/ Sen. Feinstein. re her allegiance to her religious views and its potential effects on her decision making. Feinstein expressed concern that her devotion to Catholicism would affect her views in cases involving a right to an abortion. Sen. Durbin expressed a similar concern. Both senators were criticized by conservative circles for violating the provision in Article VI of the Constitution: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Barrett responded to Feinstein’s concerns as follows: “[L]itigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense.” Is this ambiguous? She proceeded to assert that judges are not bound by precedent which they believe conflicts w/ the Constitution. These are very troubling opinions. Many Justices, including several on the current Court, and those who dissented from Roe v. Wade, believe that Roe does conflict w/ the Constitution – that it is based on a right to privacy that is not expressed therein, but has been defended as within the “penumbra” of the 4th Amendment (as J. Douglas described it in Griswold v. Connecticut) and violates Amendments IX and X (reserving rights not enumerated in the Constitution to the people and the states).

Barrett was confirmed by all of the Republicans (including Collins and Murkowski) and 3 Democrats (Manchin, Donnelly and Kaine). Collins and Murkowski may have been willing to overlook her controversial statements since, as a Court of Appeals judge, they concluded she may have felt more bound by S. Ct. precedent. They may be more reluctant to promote her to the S. Ct., where she will feel more entitled to overturn precedent that is contrary to her religious convictions. (A great quote by Justice Jackson: “We are not final because we are infallible; but we are infallible only because we are final.”

In light of the above, I am persuaded Trump, should he pull Kavanaugh’s nomination or he withdraws, is more likely to nominate Barrett than any of the remaining male candidates on his short list – why risk another possible imbroglio involving revelations of past sexual misconduct? (I believe that statistics demonstrate that men are more prone to commit sexual offenses than women.)

It’s not over until the lithe, attractive, smart, religiously devout lady sings. (If she is nominated/confirmed, I sure would like to be in the room when she meets Justices Ginsburg, Kagan and Sontomayor.)

LFC said...

@ MS

I think all I was trying to suggest -- and probably I didn't say it very well -- is that Wolff's Freudian take on Kavanaugh is theory-influenced (or theory-laden) speculation, and that's different from the people-watching analogies he used. Maybe "hazardous" was the wrong word. I just think it's different than common-sense inference.

Look, a lot of it's probably right -- I didn't really read the Slate article about male bonding and all that, but Wolff's line in his post is similar in some respects. Seems plausible enough. The "theory of the case" a la Wolff is that heavy drinking w male friends was a kind of release from the pressure of getting top grades, being a good athlete, a "good boy" etc. and also allowed the release of certain aggressive urges that otherwise might not have been released, or would have manifested in different ways. (Remember, Wolff is a Freudian: drives, repression, and the whole Freudian apparatus is the mental frame that W. approaches this from.) And as I say, sounds plausible enough.

And as you say, if it's wrong, where's the harm? I guess what bothers me is Wolff's note of certainty, despite the pro forma caveats.

For instance, in the current post Wolff's "absolutely sure" that K's assaultive behavior continued past his college years. "Absolutely sure"? There's one really credible allegation, and that's Ford's. Ramirez's may be credible, but harder to tell. Swetnick's story seems just weird. And there are a couple of other things floating around that seem to be sketchy but who knows. So far there's one really credible and aired allegation, and that involves something K did when he was 17. From this, plus his aforementioned 'theory of the case,' Wolff is "absolutely sure" that this is someone who exhibited a pattern of behavior, not one or two instances, but a pattern stretching beyond college. Ok, whatever, maybe it's the case, maybe not. I don't know.

I was opposed to his confirmation before any of these allegations arose, and so was almost everyone who reads this blog, I would imagine.

I intend this to be my last comment on this subject. I am quite busy and I have spent enough time on this.

Steve Webb said...

I've just stumbled on a line written by Jorge Luis Borges. It encapsulates with uncanny precision my response to Brett Kavanaugh's shocking display of rage and contempt toward those who have legitimate questions about his character. "Displays of hatred," Borges said, "are even more obscene and denigrating that exhibitionism." That's what Kavanaugh was displaying: sneering, petulant, red-hot hatred, mixed with a good deal of sulking self-pity. Whatever Kavanaugh may have done or not done in high school or college, grave but possibly unprovable allegations, seems to me now entirely eclipsed by that indubitable performance. It was, as many have observed, a self-unmasking, and the self thus revealed is clearly temperamentally unsuited for the Supreme Court. I don't understand those who claim that his brazen mocking of U.S. Senators (unchecked by Chairman Grassley, it should be noted) is the understandable expression of provoked innocence. One does not protest one's innocence by stomping on the accuser's foot. Nothing speaks better for good character, it seems to me, than self-control and good manners. These are pretty basic.

Anonymous said...

"One does not protest one's innocence by stomping on the accuser's foot. Nothing speaks better for good character, it seems to me, than self-control and good manners. These are pretty basic."

Ha. Well, these norms changed with the arrival of Trump.

Anonymous said...

Kavanaugh is currently on a Court of Appeals (D.C. I believe). He remains there until confirmed or he retires or resigns. It is not part of any deal. Also there is some reporting that the FBI is interviewing just 4 people; there is also reporting of a wider investigation.

MS said...

Willie Nelson debuted a new song, Vote 'Em Out, at a Beto O'Rourke rally.

Love it!


https://www.cnn.com/2018/09/30/politics/beto-orourke-willie-nelson/index.html