Sons and Daughters

An article published on a right wing web site the other day began with this:

I have two sons. One is in his 20s, well on his way into adulthood. The other is 16 and, given the way the Brett Kavanaugh nomination process is headed, walking a tight rope between college preparation and jail. 

As President Donald Trump noted in recent comments about the runaway train called Supreme Court Nomination, it’s “a very scary time for young men in America.” 

Yes, it is. This is no joke. The sons of America are facing some dire straits.

Having a 17 year old son of my own, I know a little about parental concern for a young man about to become an adult. We've been blessed with a son who has a good sense of self-preservation and an understanding of the difference between right and wrong. We'd like to think the latter at least is partly a result of good parenting but perhaps we're giving ourselves too much credit. Suffice it to say, his good character is a blessing.

While I don't feel he's walking a tight rope between college preparation and jail, I still worry. I worry about his future. Of course I want him to be successful in whatever endeavor he chooses to pursue, but I also want him to develop meaningful relationships and to lead a happy life. On top of all that, my desire for him is to be a good person, empathetic, trustworthy and generous, the sort of person people admire for his integrity at least as much as for his professional acumen.

My boy is a pretty good student but has inherited his parents' tendency for day-dreaming which at times proves to be a challenge in school. Hopefully he'll be going off to college next year and I worry about things like how we'll pay for it, how he'll handle being away from home for the first time, how we'll handle him being gone, and how he'll do in school without his parents being around to give him that little push every now and then.

I worry about his safety. We live in a neighborhood where there is occasional gang violence. Every day I walk past a cross making the spot where a month ago, a young man who had just come to this city to study at Northwestern University was caught in the middle of gang crossfire and was killed.  Last week a masked man roaming around an adjacent neighborhood shot and killed two people for no apparent reason. At this writing he is still at large.

Like every parent who has ever cared about his or her kids from time immemorial, I worry constantly about my boy.

Given all that, I have to chuckle about the comment in the quote above about American teenage boys today facing dire straights because of the chance that someone in their future might concoct a cockamamie accusation that might harm them. I laugh because from every indication, the woman who wrote the article quoted above is white. I know this to be true because no black parent without a profound sense of irony would ever write that. The truth is that black people understand the real possibility that their sons might be falsely accused of committing a crime, often with dire consequences, as has been the case in this country for centuries. But typically for a white parent in this same country, that concern is a little like worrying that one day your son will be struck by lighting, possible, yes, but highly unlikely.

Unlikely that is unless your boy is the type of person given to tempting fate. If you walk around a golf course during a thunderstorm wearing metal spikes and swinging a metal golf club as the heart of the storm is directly overhead, you stand a much greater chance of being transformed into a pile of carbon dust, than if you don't. Likewise if you are a male high school or college student who blindly follows a hedonistic crowd who openly partakes in drunken debauchery and cares not a trace about decency, right and wrong, respect for women, or other people who are outside of their little clique, then years later claim you were just doing what everybody else did back in the day, you might stand a chance of finding yourself in the same position that Brett Kavanaugh found himself in last week.

Easy for me to say as I was something of an outsider during high school and college and avoided much of that collegial decadence. That's not to say in my life I never drank myself into a state of unconsciousness, or did things that I should never have done while in an altered state. That is precisely why I don't believe Kavanaugh's testimony during his Supreme Court confirmation hearings regarding his drinking, He said point blank under oath that while at times he drank to excess during his wild years, he was never beligerent, or ever drank so much that he passed out, two things several of his classmates at Yale and at Georgetown Prep vigorously deny.

As for his accuser, I can say that like her, I too have experienced traumatic acts as a victim of violent crime, and can recall certain details perfectly while forgetting trivial matters such as dates or how I got home. In other words, her testimony made perfect sense to me.

Does that mean I believe that Kavanaugh attempted to rape Christine Blasey Ford back when the two were in high school? Well let me just say this: only two people in the world know the truth about what happened that long ago night, (perhaps only one of the two since Kavanaugh may have been too drunk to remember), so all we have to go on is her word against his. In my book, her testimony was credible, while his had holes in it the size of the state of Texas.

That in itself does not mean he is guilty. Sexual assault cases, especially after a long period of time, seldom have corroborating evidence; typically they amount to one person’s word against another's. But it bears repeating over and over that Brett Kavanaugh was not on trial, he was interviewing for a job. A no vote on his confirmation was not a guilty verdict, it was simply expressing the belief held by perhaps one hundred million Americans, thousands of lawyers who make up the American Bar Association, forty eight senators, and one former Supreme Court Justice who happens to be a life long Republican, that Brett Kavanaugh’s sense of entitlement, his tantrums, his display of raw fury,  his disrespect for the confirmation process, his bending of the truth under oath, and above all, the political partisanship he displayed at his hearing, proved beyond a reasonable doubt in all those minds that guilty or innocent, his temperament makes him unqualified to sit on the Supreme Court.

Yet to listen to the Republicans who supported Kavanaigh's confirmation, you'd have thought he was the victim of a terrible injustice comparable to the Spanish Inquisition. Last night during a ceremonial swearing in ceremony at the White House, President Trump apologized to Kavanaugh for all the bumps in the road he faced during what turned out to be his successful confirmation:

Those who step forward to serve our country deserve a fair and dignified evaluation, not a campaign of political and personal destruction based on lies and deception,.. 

What happened to the Kavanaugh family violates every notion of fairness, decency and due process,..

(Everyone in this country) must always be presumed innocent unless and until proven guilty... 

You, sir (speaking to Kavanaugh), under historic scrutiny, were proven innocent,

Those are all fine sentiments indeed, until you stop and think about them.

I suppose one could forgive the president for his obvious ignorance of the rules of evidence, due process, and the presumption of innocence outside of a court of law, because he is not a lawyer. On the other hand, the man standing right behind Trump’s right shoulder, Brett Kavanaugh, newly appointed into the Valhala of this country’s most esteemed lawyers, could have reminded the president for example that in no way did his hearings and the flaccid FBI investigation the president ordered, prove Kavanaugh's innocence. Maybe he just forgot to remind him.

As far as "fairness, decency and due process" are concerned, this is entirely new ground for Donald Trump. Just ask the Central Park Five.

Far more appalling than the president's pathetic lack of understanding of the rule of law is his claim that the accusations against  Kavanaugh were based upon "lies and deception."

He may not know squat about the law but Donald Trump does knows more than a little something about being accused of wrongdoing. Over twenty women of all political stripes have come forward to accuse him of sexual abuse. On top of that he is on tape not only admitting, but bragging about sexually assaulting women. Yet he vehemently denies any wrongdoing. He has publicly stated that every one of his women accusers is a liar, so it shouldn't come as a suprise that he is now calling Christine Blasey Ford a liar as well.

In Trump's world view, it is men who are the victims of feckless women, not the other way around. Here are his comments from above in their full context:

It's a very scary time for young men in America when you can be guilty of something you may not be guilty of. This is a very difficult time.

After he said that, Trump was confronted by a reporter who asked him if it is a difficult time for women as well. No, he said, "women are doing great."

Well Mr. President I have a little news for you. I also have a daughter. Because of that I can assure you that women in this country are not doing great. I have the same hopes and dreams for my daughter that I have for my son. I also have all the same worries and a few more. For starters, I worry that my daughter will be subject to the same kind of treatment that people like you have inflicted upon women. Believe me, it's a sad situation when I wouldn't allow the President of the United States to come within one hundred yards of my daughter any more than I would let any other self-proclaimed, unrepentant sexual predator. It really saddens me that my daughter sees the president of my beloved country and his Republican lackies caring so much about winning at any cost that they would not take the time to properly vet a candidate for the most important job in the nation, (yes even more important than yours Mr. President), who has had a very credible charge of a serious crime brought against him. And it sickens me to think that the biggest lesson my daughter has learned from you is that if a young woman like her dares to speak out about sexual abuse, she too could be publicly slandered, ridiculed, humiliated and laughed at by the President of the United States and the sorry people who blindly follow him.

But Mr. President there is cause for hope. You and all your white male Republican senators who couldn't contain their glee after winning this battle, are old and won't be around for long. There is a new generation of people who will take your place who don't necessarily believe that men have the privilege to treat women like cattle. Many of the new generation's leaders in fact are women. They and the fifty plus percent of the population who are also women will not forget your disrespectful and disgusting actions in regard to them over the past few weeks. Remember the march on Washington, the one with all the pink pussy hats that drew at least twice as many people as your inauguration? Believe me that's going to look like a walk in the park compared to what's coming.

True, Brett Kavanaugh is relatively young and could be on the Supreme Court for a long time. Of course one never knows how a justice will rule once he is on the bench. If he was sincere last night about not being as much of a partisan hack that he seemed to be during his confirmation hearings, maybe, just maybe he will contribute to rulings that will truly benefit the people of this country, not just the powers that be. Regardless, he will forever be under a microscope and as long as he sits on the bench, every vote of his will be closely scrutinized. If he upsets enough people, especially women by voting to take away rights they have held for decades, another, less friendly administration to him, probably one headed by a woman, could re-open his attempted rape case. Supreme Court justices can be impeached too you know.

Whatever happens with Kavanaugh, the tide is turning. For the past year, my daughter has proudly worn a tee shirt that proclaims "The Future is Female." It clerarly pisses off friends of ours who happen to support you. They don't say anything because I have the distinct feeling that deep down, they too begrudgingly believe it's true.     

Perhaps you're right about these being scary times for men. Everything that you and your cronies hate is about to come true. Maybe not in November, perhaps not even in 2020, but one day, thanks to you, old white men like us will become irrelevant in this country. You and your actions have emboldened the revolution. Remember the bit about hell having no fury like something or other? It's coming Mr. President; you've briefly put off the empowerment of women and minorities that you and your supporters are so fearful of, but it will rebound with a vengeance and there will be nothing you or your friends can do to stop it.

From the lion's share of women I know, my wife and all her friends, my daughter and her friends, my mother and her friends, from all my female colleagues, most of my friends, family, and female acquaintances, from just about every woman I have ever known in my life, I have a message they wish to convey to you Mr. President. That message is this:

Whatever.

You have left quite a mark, or perhaps more accurately, a stain on this country, one that thanks in large part to your noble efforts, will be washed out with the rest of the dirty laundry sooner than you can imagine.

The Realm of Possibilities

I understand the legitimate concern over a person's reputation being destroyed by an unverifiable, scurrilous accusation. Furthermore it is not out of the realm of possibility that an individual with an axe to grind, might fabricate such an accusation, or convince someone else to do so. I can think of few worse injustices than to be destroyed by an intentionally false accusation.

Then there is the problem of diametrically conflicting stories. In jurisprudnece there is a well known phenominon referred to as the "Rashomon effect", named after the Akira Kurasowa film based upon the contradicting testimonies of multiple people who witnessed the same crime. However in the Rashoman effect, there is at least one point of agreement in the conflicting testimonies, the event itself.  What happens when there is not even an agreement that the event in question actually took place? Still more problematic is when there are only two witnesses, an alleged victim, and an alleged perpetrator.

Oh yes, what happens when the alleged event in question took place decades ago, meaning any kind of physical evidence of the alleged crime has long since vanished?

Such is the case in the latest episode of the ongoing saga of the current administration, known as the Kavanaugh affair.

In case you're reading this hot off the press, you probably don't need any further explanation and can skip the following five paragraphs. However if you've come here after digging around this blog's archive a few years after the fact, you might need a little reminding.

For years the swing vote on the US Supreme Court was Justice William Kennedy who sometimes voted with the four predominantly liberal justices and sometimes voted with the predominantly conservative justices As such the Court was seen as for the most part, ideologically balanced. Upon Kennedy's retirement a few months ago, the task of submitting a candidate to the Senate to confirm his replacement as it always does, fell upon the shoulders of the president. The president selected Brett Kavanaugh, a solidly (some would say excessively) conservative judge currently serving on the Federal bench. Clearly with Kavanaugh's record, the balance of the SCOTUS would shift dramatically to the right should his nomination go through. This is especially troubling to many as a solid conservative Court could potentially review and overturn previous SCOTUS rulings, thereby revoking rights that people have held for decades, most notably Roe vs. Wade which guarantees every American woman's right to obtain an abortion with no questions asked.

This particularly contentious issue is probabaly the single biggest reason why Donald Trump won the support of tens of millions of conservative religious voters who collectively held their noses as they overlooked his many obvious moral transgressions, simply because he promised to appoint judges who would vote to overturn Roe v Wade.

With a majority Republican Senate, the president's pick is almost a certainty to be appointed justice, a job for life. Not surprisingly, Democrats are doing everything in their power to stall the nomination of this particular judge, in anticipation of the next general election a little over a month from now, where the Democrats have an outside chance of winning back the majority in the Senate. This may sound like obstructionist politics at its worst, but Democrats are simply following the precedent of the Republicans who during the waning months of the Obama administraton, refused to even consider the nomination of Merrick Garland, President Obama's candidate to fill the seat of the late Antonin Scalia. As Scalia was solidly in the conservative camp, Garland had he been approved, would have shifted the balance of the Court to the left. 

The hearings to confirm Kavanaugh were going along swimmingly for him until near the end when it was revealed that a woman had come forward to accuse the potential new justice of sexually assaulting her in the early eighties when both of them were still in high school. Kavanaugh's accuser eventually agreed to make to her name public and testify before the Senate committee in charge of the appointment hearings, This past Thursday, Dr. Christine Blasey Ford gave a stirring account of her accusation that thirty years ago Brett Kavanaugh tried to rape her but could not, because he was too drunk to figure out how to remove the one piece bathing suit she wore underneath her outer garments. She then respnded to questions from the ten Democratic senators on the committee. Rather than question her themselves, the eleven Republican senators on the panel yielded their time to Rachel Mitchell, a Republican prosecutor from Arizona, who grilled Dr. Ford on the stand as if she were the accused in a criminal proceeding. The second half of the day was devoted to Judge Kavanaugh who gave an impassioned defense of himself, then responded to questions from the Deomocrats as well as the Republicans who used their time to heap praise upon the judge and condemnation upon the Democrats, accusing them of deplorable actions all in the attempt to discredit a fine judge.

The following day it was decided (I won't go into why, that's a blog post and a half all to itself) that the FBI would conduct a week long investigation into the matter before it goes to a vote before the full senate.

I also won't go into guilt or innocence, or the long list of social issues brought about by this case for the simple reason that these issues have been dealt with significantly elsewhere for the past two weeks.

Rather what I would like to address, is what amounts to the nitty gritty of this case, namely this: is Brett Kavannnaugh qualified to be a Supreme Court justice? As has been pointed out correctly by numerous folks, the  whole confirmation process amounts to nothing more than a job interview. Granted the job of replacing the swing vote on the Supreme Court, a tenure that could last forty years or more, is perhaps the single most important job in this country. But the hearings are a job interview nonetheless.

What they are not, is a criminal proceeding. This past week, we've heard the term "due process" bandied about over and over by Kavanaugh supporters who insist that he is innocent until proven guilty and that the burden of proof of his guilt, lies with his accusers. This is nonsense. Kavanaigh is not on trial, he doesn't stand to lose his liberty as a result of these hearings. He only stands to lose his chance, at least during this go-around, to be a Supreme Court justice. Consequently these hearings which will provide guidance to the entire Senate, are not a means to determine whether or not Brett Kavanaugh  tried to rape Christine Ford thirty five years ago, but rather to look at all the evidence presented, and determine if there is a credible reason there to reject his nomination for a seat on the bench of the highest court in the land.

With that in mind, I think it would be helpful to break the testimony down to all the possible conclusions that can be drawn from it. As the testimonies of these two individuals are diametrically opposed, to me there are three conceivable scenarios which themselves can be broken up further.

• The first conclusion that can be drawn is that Brett Kavanaugh tried to rape Christine Ford in the early eighties.

• The second is somewhere in the middle; there was physical contact between the two individuals, but the intents of the victim and the perpetrator at the time are in dispute. 

• The third possibility is that Kavanaugh is innocent of the accisation.

I have a strong opinion which of the three is the most likely, but frankly my opinion on the matter is irrelevant. What is significant is to examine each scenario to determine if any or all of them are worthy enough to disqaulify Kavanaugh's nomination to the Supreme Court.

Let's examine each of them one by one:

Case one: Dr. Ford's accusation is true; Brett Kavanaugh while in a drunken stupor tried to rape her. If you take her testimony to be true, there are two possibilities. either Judge Kavanaugh was so drunk at the time that he cannot remember what he did that night, or he is simply lying. Is the latter case a justification for dismissing Kavanaugh's nomination? Hell yes, without question, both for the original crime committed and for committing perjury in the Senate hearings. What about the former? Again, without question. A person is accountable for his actions whether drunk or sober. If someone charged with vehicular homicide tries to use the defense that he was so drunk at the time that he didn't know what he was doing, he would suddenly find himself charged with two very serious crimes. Before the Senate committee, Kavanaugh admitted to serious drinking in high school and college but refused to admit that he had a drinking problem. He claimed to never having drunk himself unconscious. Several of his classmates at Yale beg to differ, saying he was less than forthcoming about his drinking, which was according to them, prodigious. If this is true, Kavanaugh obviously has deeper problems than not being our next Supreme Court justice.

Case two: Physical contact between the two took place, but it was not a serious as Dr. Ford's allegations claim. Since neither Dr. Ford nor Judge Kavanaugh claim having had a consensual relationship, the scenario is unlikely. However the possibility has been brought up by defenders of the judge, namely Fox News who imply that their contact was indeed consensual,  so it may be worth examining for a moment. There is a recent precedent for a public figure accepting charges of sexual assault brought against him. That public figure was US Senator Al Franken who admitted inappropriate conduct with his accuser, just not the extent to which she claimed. Frankin openly called for an investigation into the matter, something his accuser, for reasons known only to her, claimed was not necessary. Faced with increasing pressure from his own party, Franken resigned from the Senate. Kavanaugh missed the boat with this possible excuse as in his sworn testimony, he unequivocally denied having had any physical contact with Dr. Ford. Should he bring up a consensual relationship with Ms. Ford up at a later date, he would be admitting that he lied under oath, which of course would be immediate grounds for his dismissal. Kavanaugh also is suspect because during the hearings he avoided the question of whether he supported an FBI investigation of the matter in order to clear his name, while Dr. Ford openly supported an investigation.

Case three: Brett Kavanaugh is innocent. If you believe him, there are a few possibilities. One is that Christine Ford was sexually assaulted as stated in her testimony, but is mistaken about the identity of her attacker. The other possibility is that she is making the whole thing up. At this point for fairness sake, it must be pointed out that fraudulent reports of rape are rare, but not unheard of. Again there is a precedent for a public figure to have been falsely accused of sexual abuse, in his case of a minor. The name of the falsely accused individual is Joseph Cardinal Bernadin, a former archbishop of the Archdiocese of Chicago. The pain that Bernadin suffered during the period after the accusation was well publicized, as was the grace of the Cardinal in his forgiveness of his accuser after he admitted that he lied. As a fellow Catholic, Brett Kavanaugh should have been intimately familiar with Bernadin's grace during this particularly painful period of his life, and used his example as a model of how to react during a time of adversity. Unfortunately he did not. It is said that none other than Donald Trump coached him on how to behave at the hearing. He told the judge to get mad. Turns out Kavanaugh was a good study, in his opening statement before the Senate subcommitttee on Thursday, Kavanaugh ranted, raved, scowled whined and pouted, throwing temper tantrums accusing the Democrats of character assassination, and conducting a "calculated and orchestrated political hit" on him. What made his mentor the proudest was no dout Kavanaugh's mention of Bill and Hillary Clinton. His remarks were filled with self-pity and indignance in the fact that a man of his stature, should be subject to such treatment. It has been a cliche of late to use this term but for lack of a better description, white male privilege oozed out of every pour of Brett Kavanaugh last Thursday, and it was ugly.

Giving the judge all the benefit of doubt, and assuming that he is innocent of the accusations against him, Brett Kavanaugh did not act like a judge the other day let alone a Supreme Court justice, During the most important job interview of his life, he acted like a spoiled rich kid. Kavanaugh responded to reasonable questions with spite, bitterness, disgust, and above all in his claim that Dr. Ford's accusations were nothing more than a Democratic conspiracy to discredit him, he displayed an unacceptable political bias for a potential justice. What more reason does one need to reject an applicant for a job? Typically when someone blows a job interview, he does not get the job. My suggestion to the members of the Senate who are in a position to hire the next Supreme Court Justice is this, look for someone else.