SCOTUS, Justice, and Justice

Last week, I tweeted this:

I hate what’s happening, but if accusations are sufficient to disqualify people, then everyone is going to be accused. Everyone will be disqualified. People game metrics, and they’ll game that one. I don’t see a way out but accusations disqualifying people probably isn’t it.¹

Some sincere soul replied:

Ron, you are disqualified as somebody I looked up to.

As is my fashion, I assume that if someone else and I do not agree at some level, it’s because we do not understand each other well enough. I do not, necessarily, assume that the other party leaps to unjustified conclusions, reads carelessly, does not assume good intention, or that they are generally ill equipped for intelligent discourse. So I’d like to expand a bit on my thoughts above.

Bona Fides

First, I guess I need to establish my bona fides. For better or worse, here goes:

Regarding Kavanaugh

• I think it is wrong, hateful, and immoral that Obama was cheated out of his nomination and that Merrick Garland was not given a fair hearing.
• I think pushing through Kavanaugh’s hearing was equally wrong, hateful, and immoral.
• I think the whole darn political process is wrong, hateful, and immoral.
• I think Kavanaugh clearly disqualified himself from being considered for anything remotely “judicial” with his performance before the Senate, in which he seems to have dissembled if not lied, surely displayed strongly partisan views, and blustered in a manner more suitable to a two-year old.

Regarding Assault

• I think rape is the worst crime, worse than murder.
• I think attempted rape is terrible.

Regarding Politics

• I believe that the GOP is the party of hatred, divisiveness, big business, oligarchy, the status quo, of white power, and of male power. In case it’s not clear, I’m not in favor of any of those.

Now then

Back to the tweet:

I hate what’s happening, but if accusations are sufficient to disqualify people, then everyone is going to be accused. Everyone will be disqualified. People game metrics, and they’ll game that one. I don’t see a way out but accusations disqualifying people probably isn’t it.

Just as strange women lying in ponds distributing swords is no basis for a system of government, condemning people based on accusations isn’t a decent basis for a system of justice. We need to look deeply into what happened. When the consequences are important, we need to look even more deeply. That didn’t happen here, and that’s bad. But, ironically, it doesn’t necessarily mean that the decision was wrong.

Do I believe Dr Ford? I certainly believe that something bad happened, and that she sincerely remembers that it was Kavanaugh who did it. If I had to bet, based on what we know right now, my money would say that it happened, and he did it. However, that’s a long way from proven. I think we do not know the facts. I am inclined to believe with the accuser in these matters. I am also strongly aware that accusers aren’t always telling the truth, and that accusers don’t always remember things perfectly. I think it is possible, if not probable, that things didn’t happen as Dr Ford testified. Presently, I believe her.

I can also imagine a sincere and intelligent person being less inclined to believe Dr Ford’s testimony than I am. I myself came close to a false accusation of a sexual nature when I was a teen. The girl absolutely intended to claim that I was the father of her child if it turned out that she was pregnant – despite the fact that we had not had sex (and in fact I was a virgin at the time). She thought, rightly, that I’d be a better catch. How do I know this? She told me.

That experience didn’t sour me on women or make me disinclined to believe them. But I can certainly imagine a sincere person, male or female, whose experiences led them to take Dr Ford’s testimony less seriously than I do. That wouldn’t make them evil. It might not even make them wrong; we need to remain open to the possibility that Dr Ford was mistaken or although I doubt it strongly not telling the truth.

Legally, we hold people innocent until “proven guilty”. Now our legal system is far from perfect, directly relating to this case. We saw it playing out here, albeit gently compared to a court situation. The defense piles onto the accuser, questioning their memory, their motives, their morality, their outfit, everything they can think of to provide the inkling of doubt that is all it takes to get the defendant off. The system is stacked against women in these situations, against people of color in almost all situations. Things are strongly stacked in favor of the well-off white male.

That’s not fair. We need to find ways to make it more fair. But it has to be more fair, not differently unfair. Just condemning people who are accused isn’t the answer either. (Not that you said it was. Point is, it’s not going to be binary, it’s going to be nuanced, slow, and difficult.)

Accusations won’t work as a system of justice

But we’re here to talk about the tweet:

I hate what’s happening, but if accusations are sufficient to disqualify people, then everyone is going to be accused. Everyone will be disqualified. People game metrics, and they’ll game that one. I don’t see a way out but accusations disqualifying people probably isn’t it.

My concern is that if – if – we were to disqualify people based on accusations, unproven, of things they may have done decades ago, that strategy works for everyone. Every time someone runs for office, is offered for promotion, whatever, the strategy of the opposition would be to produce an accuser. Poof, they’re disqualified.

That won’t do. Assessment of qualification needs to be more robust than that. Our criteria for who works for us in office need to be based on their real qualification, on what they will likely bring to the office, not on something someone says about what happened decades ago.

I would, however disqualify him. Why? I’ll tell you why.

Now, I think Kavanaugh could be, and should be, disqualified based on better reasons. He’s clearly partisan, and kind of the point of the judiciary is to be non-partisan (albeit principled). He was clearly dissembling, if not lying, under oath. I’d say that doesn’t rise to the level of probity we might expect in a Supreme Court Justice. His emotional outburst and flagrant accusations displayed a personality rather the opposite of the thoughtful, judicious no pun intended people I’d like to see on the Court.

So no. He should not be disqualified because of what Dr Ford said. He should be disqualified because of what he said and how he said it.

As for what Dr Ford said, I wish the truth of it could be determined, by investigation or other means. If, as I believe, it’s true, I wish justice could be done. Criminal justice seems unlikely: it was too long ago. Statute of Limitations and all that. Maybe some social justice should be applied.

But those decades do bring other concerns to my mind. I’ve never raped anyone or tried to. But I’ve done things in the past that I rather regret, and I can imagine that some of the people I’ve been involved with might regret what they did. I’ve tried to learn from those things and I hope I’m a better person for that learning.

I think redemption is possible²

Suppose someone – not Kavanaugh, we’ll come back to him – suppose someone did something bad, learned from it, and became a better person for it. Suppose we could ask them about what they did, what they learned, what their views were now. Might we not conclude, sometimes, that they had learned their lesson, and not burn them at the stake?

I want to believe that people are redeemable, because I want to believe that I am redeemable. I want to believe that we can screw up, learn, and improve.

So … had Kavanaugh said that while he didn’t honestly remember that event, certainly things like it had happened in his youth, and gone on to say what he had learned, and told a credible story about how he was a better man today, I’d have wanted to listen. I’ve have wanted to assess his credibility. I would have wanted not to write him off over something that happened decades ago.

I’d still disqualify him …

He didn’t do that. He chose to stonewall, to bluster, to blame others. I’d write him off for that, whether or not he ever laid a hand on Dr Ford.

Too many of us have things that happened decades ago, or last week, to go around writing people off without regard to whether they’ve learned and improved. We need to look beyond that, within that, to get a sense of who they really are now.

And that’s why I think we can’t just condemn everyone who is accused. Not just because they might be innocent – although hey, if they are innocent, that is kind of an issue isn’t it – but because we want to assess people as they are, as deeply as we can.

I’d like to be assessed now as I am now, so I would like to assess others that way. I’m not sure what to think about someone who is prepared to condemn someone based on a serious but ultimately unconfirmed accusation. And I certainly don’t know what to think about someone who would write someone off for a tweet, particularly as well-considered, finely delineated, and deep a tweet as mine.

But in the end, people get to do what they want. Rock on!