Blackstone, Crip Dyke, & The Next Nomination

William Blackstone once wrote:

all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.

The latter part has been deemed The Blackstone Formulation, being a restatement of a principle of law that goes back much further in time than the 1760 date on which Blackstone’s Commentaries on the Laws of England was published. It has reappeared frequently in different times and places, typically reworded slightly but with the numbers rarely changed. What is often lost is that we’re not actually talking here about things like whether a woman should accept a marriage proposal from a man credibly accused of beating the fuck out of his past partners. We’re talking specifically about the criminal law and whether the government is or should be empowered to end or suspend someone’s freedoms, and under what conditions that power can be exercised. The point is to encourage us to think about the consequences of acting under the guise of justice to punish those whose guilt is less than certain.

During the Kavanaugh hearings, I often found myself screaming that the presumption of innocence is not for confirmation hearings. But while the Blackstone formulation helps us understand why we might set a high standard for conviction (beyond reasonable doubt), simply screaming at the internet that the PoI is for criminal trials and not for confirmation hearings doesn’t explain why we should have different standards.

To this end, I want to ask a new question that might help. You can call the this “Crip Dyke’s Question” but the rule being questioned should, I think, clearly be named, “The Lindsey Graham Formulation”:

Is it better to place ten rapists on the Supreme Court than have one innocent man serve his lifetime appointment in honor and privilege on a court of appeal one level below?

Tweet the fuck out of #CripDykesQuestion. Call your senators and ask their staff members this question. Go to debates and use the audience question time (or pre-submission of questions mechanism) to place this question before your senators.

This isn’t too late. This is what we have to do before the next confirmation hearing, and if we want the question to penetrate the public consciousness, we must start now.

Dishonest or Incompetent?

I’ll make clear again from the outset that I believe Dr. Blasey Ford’s allegation of an attempted sexual assault by Judge Brett Kavanaugh. I further believe that this is entirely sufficient to deny him confirmation to SCOTUS.

That said, I think that the more effective tactic to take in the media if one wants to get the sexist Republican Party senators to vote against his confirmation is not to stress Dr. Blasey Ford’s testimony more than it has already been stressed. No, it should continue to be covered at similar levels to now, but what needs to be ramped up isn’t that. It’s the argument that Kavanaugh’s testimony is by itself also sufficient reason to deny his confirmation. The Intercept (a publication for which my respect declined in proportion with the decline in my respect for Glenn Greenwald, but which nevertheless does publish some – perhaps many – good things) has taken a similar tack. In a recent piece, Intercept authors Briahna Gray and Camille Baker attempted to demonstrate to non-lawyers and non-law students just how damaging Kavanaugh’s testimony on its own ought to be:

KAVANAUGH’S APPARENT WILLINGNESS to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and dissembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

Note that here, if you’re not certain since they weren’t explicit, they’re trying to say that the excuse of misunderstanding a question does not save Kavanaugh. If he can’t parse the meaning of the questions as asked because of his own filters, then he won’t be able to parse other questions or statements that are necessary to resolve the questions at issue in cases that come before SCOTUS. Back to the Intercept:

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job.

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor?

“DUE PROCESS” MEANS fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, has thrown that into serious doubt.

Aside from the terrible phrase “parsing hairs”, Gray and Baker are dead on here. I expect the Republicans to ramble on about how bitches dems be lyin, and I think that they’ve frankly committed themselves to the fallout of their overt sexism and their overt stand against the idea that committing sexual assault might make one less fit for a seat on SCOTUS. However, I don’t think they’ve yet taken a stand to the effect that dishonesty under oath should not make one less fit for a seat on SCOTUS, nor do I think they’ve even thought about the ramifications of attempting to deploy the excuse of Kavanaugh misunderstanding questions.

Hammer your senators on the import of Blasey Ford’s testimony. However, if you’re calling your senators, I think you should also hammer them on these important issues of Kavanaugh’s dishonesty and his inability to parse important questions when the stakes are high.

[h/t to Mano for bringing the Intercept piece to my attention. I don’t normally read the website except when another outlet links to it and would never have found it without the writing of my FtB colleague.]

 

 

 

Kavanaugh’s Nomination Should Fail, But Not Necessarily For The Reasons You Think

Just now there is a fucktonne of writing being produced about Brett Kavanaugh’s assault of Christine Blasey Ford. Here’s one on FtB. Here’s another. You can read them and the thousands of others like them if you wish. I’ve read some. I’m not going out and seeking more, because I’m not convinced that Ford’s allegation, even if proved true in every detail, is the best reason to kill Kavanaugh’s nomination.

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Bad Journalism 101: Perverted Motels Edition

Content Note: Child Sex Abuse

So, we here in my head are, as you might expect from the title of this blog, quite interested in both perverts and perversion. We believe that our blog name can and should be interpreted in 2 ways:

  1. Perverts deserve justice in the same way non-perverts deserve justice, and
  2. The course of justice must sometimes be perverted, that is redirected from what in the past had been considered the just outcome. After all, every major advance in justice has been denounced as a perversion of justice by someone.

But despite our interest in these topics, we never expected to have to defend motels from non-consensual obscene photography. Yet, apparently there is such a need. The following is an actual quote from Rawstory:

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You Are Not The Hero

While this is an unoriginal thought even though the topic is only 24 hours old, I still need to say it:

Hey, you! Author of that anonymous NYTimes editorial about how Trump is so bad but the Trump administration is so good? Yeah, you. You are not the hero.

PZ has mentioned this and gets it right, but many here remember Ed Brayton, whose writing I greatly respect, and Ed Brayton gets it wildly wrong. He says exactly the opposite:

I suspect that this kind of thing might well topple a lot of other dominoes and set off a reaction where a significant chunk of Republican politicians, advisers and thinkers decide that this is the time to take down the elephant.

And frankly, they would be heroes, and history would treat them as such.

No. When you pull out a gun on a kid playing in a park and then you put the gun back in your holster, you are not a hero. You’re Frank Freuding Garmback. You don’t get to be the hero just because you’re not Timothy Loehmann. You’re probably not a bad person, but you’re not a hero.

But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback: the editorial writer makes no effort to encourage invocation of the 25th. The editorial writer is engaged in apologia for the administration if not the President, and the anonymity, far from being a necessary capitulation to the exigencies of working for Trump, is in fact a tool to absolve every administration official and White House employee of their complicity.

Here’s the truth: the constitution gives two ways to take a madman out of the White House: impeachment and the 25th. If you recognize that governmental legitimacy and authority in the US flows from its constitution, then while you are an employee or appointee of the executive branch, you are duty bound to follow the directives of the President. To respond to dangerous incompetence for the office by subverting the authority of the sitting president rather than openly calling for the impeachment and removal of the president by congress or the invocation of the 25th and removal of the President by the Vice-President and the cabinet, you are shredding the constitution.

This author rejects, quite fully and fundamentally, the authority of the US Constitution, and defends as heroes the people who arrogate to themselves power legitimately given only to someone actually elected to executive office. These are not the actions of a hero. Nor is the use of anonymity to give cover to anyone and everyone who might possibly have written the editorial.

Quit. Invoke the 25th if you have the standing to do so. Openly advocate for the invocation of the 25th and/or the impeachment described in Article II, Section 4 and authorized in Article 1, Sections 2 & 3 (and quite possibly get fired for doing so).

Those are the ethical and effective options of someone who has put themselves in this position by seeking and accepting a job in this administration. The author chooses none of these.

And what is worse, though we don’t know the author’s identity (and, like PZ, I’m not interested in knowing it), it is most likely that anyone in a position to write such an editorial actually worked to put Trump in office. In this case, we’re not looking merely at someone who finds themselves faced with the possibility of losing a job and decides that betraying the constitution is preferable. We’re talking about someone who actively participated in the creation the very catastrophe which they want credit for partially ameliorating.

When you set a fire that burns a house and kills two people, you aren’t a hero because after the fire consumed the staircase you got two people out of a bedroom on the main floor. Yours in the blame for the deaths, not the credit for the rescue.

You are not the hero.

 

ETA: As is so often the case, someone else has written a pithier version of what I perseverate upon. In this case, it’s chrislawson over at PZ’s thread on this topic. Nice work, Chris. Very well done.

Edited: Enlightenment Liberal made me realize that this comes across as saying that one cannot ethically stay and subvert an administration. Rereading the post, I realized that what I was thinking at the time was not as clear in my writing as I would like: If you want to be a hero, you must stand in vocal opposition. There can be many reasons to stay in your job, keep your paycheck, and do your best to limit the harms of a Trump. But these are not the actions of a hero. So I edited the 1st sentence of the paragraph immediately following the paragraph with the Frank Garmback reference.

Originally that sentence began like so:

And the situation with the anonymous editorial writer is worse

The new sentence begins like so:

But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback

The “situation” is now spelled out as lionizing someone who came to power through participation in a rule-of-law and Constitution fetishizing party for publicly seeking praise for their rule-of-law and Constitution-subverting acts.

Hopefully the new sentence will communicate the background facts (about fetishization) that weren’t in the original post at all as well as highlighting (again) that the issue is about being a hero. Continuing to collect your paycheck and doing your best to subvert bad things might be ethically justifiable, depending on what you do and how you do it it might even be ethically praiseworthy to some minimal extent, but it doesn’t make you a hero.

First Amendment Issues are NOT (necessarily) Free Speech Issues

All freaky, kinky, queer women are human beings.

Not all human beings are freaky, kinky, queer women (more’s the pity).

So how is that related to the first amendment? The First Amendment (FA) protects more than just speech. It protects a total of 5 separate rights. Let’s take a look at the full text and then break it down:

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It has happened

I’ve been analyzing and critiquing conceptions of free expression since the 1990s when anti-domestic violence shelters started asking me about how it might be possible to construct policies that support trans* participants in shelter programs without punishing non-trans* participants for the everyday anti-trans hostility that most weren’t equipped to recognize. I’ve done it from multiple perspectives – activist, ethicist, and law student – and from a US focus to a Canadian focus to an international comparative frame. So I’ve seen this one coming for a while now. We’ve been close before, but now we’re there. Not just an enemy of the state, but the biggest, most threatening enemy of the state is freedom of expression, especially expression that is distributed through the power of the press.

Donald John Trump tweeted this this morning:

So funny to watch the Fake News, especially NBC and CNN. They are fighting hard to downplay the deal with North Korea. 500 days ago they would have “begged” for this deal-looked like war would break out. Our Country’s biggest enemy is the Fake News so easily promulgated by fools!

Expect the US based Peterson and Harris fanboys and other general Freeze Peaches to celebrate or ignore this statement. For people that care about our rights and freedoms, however, this is the second worst statement the president could issue. For now, he identifies “our country’s biggest enemy” in the context of a call for mockery. The step from there to identifying “our country’s biggest enemy” in the context of a call for punishment is so dangerously small, I think few will recognize it when it happens.

 

Unclear on the Concept: No-Platforming at Stanford and the Right Wing

Some time back clinically-diagnosed dumbfuck Charles Murray was invited to participate in a media program at Stanford known as Cardinal Conversations. Lefty folks, mostly students, at Stanford organized a “Take Back the Mic” rally with counter-programming.

Naturally, Niall Fergusson, a member of Stanford’s Hoover Institute, prominent Republican and eminent jerkface, and a small group of conservative students responded with the typical concern for free speech that anyone might have when their preferred speaker is getting campus support for their speech while others say different stuff nearby. The Stanford Daily has the low-down on all this, including this particularly freedom-loving quote:

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Pat Davis: Fuck the NRA

A city councilor running in 3rd place in the New Mexico first congressional district has created a commercial that actually sounds like someone upset about the extravagant gun violence in the United States. The first words Pat Davis speaks in his new ad?

Fuck the NRA.

He goes on to criticize the anti-regulation/anti-legislation position of the NRA on gun ownership, possession and use as being one cause of “dead children”.

Pro-lifers have always been odd to me. On the one hand, I find it difficult to believe that they see medical abortion as anything remotely comparable to murder or even euthanasia. After all, think about what that would really mean. Wouldn’t the people who believe that shun birthdays as points for celebration in favor of conception days? Wouldn’t they have funerals after miscarriages? Why do they put off naming a child until it’s born? And yet we don’t see that – or at least we don’t see that from even 10% of the people who claim they’re pro-life.

On the other hand, if they aren’t parroting something that only vaguely represents a tribal position rather than a genuine and specific personal belief, then the consistent thing to do really is to chain oneself to the doors of clinics, to hold die-ins at the Capitol Building, and generally use every non-violent means possible to preserve life. Do they do that? No. The extremists of the “pro-life” movement bomb clinics, throw acid, and commit murder. While I can understand the rationale behind killing one to save two (or more), it’s not a rationale that holds all life to be sacred, as they claim to do.

But as hard as it is to come to grips with the behavior of the self-named “pro-life movement”, the gun control movement is equally weird. I do believe the laxity of US gun laws results in deaths that would not otherwise have occurred. So why am I not doing everything I can to stop gun sales? Part of it is explained by relevant differences between the situation: if you believe abortion is murder, then you know where and when murders are going to be carried out. That’s not the same as gun control advocates who believe that lax gun laws are legislative negligence destined to result in deaths at various unknown times in various unknown places. But it’s still a little weird that there seems to be so little urgency in the rhetoric of proponents of stricter monitoring of guns sold and stricter regulation of what guns can be sold and to whom.

That’s why I welcome this ad. Yes, it may have taken a 3rd place primary candidate to make the ad, but the ad is positively drenched in an honest embrace of what it means to say that legislative gun control negligence is causing death.

Watch it for yourself, and remember to vote, wherever you live.

 

Postmodernism Ain’t Say That

So someone from the UK asked me a question about postmodernism’s relationship to metaethics. I probed a little more deeply, and the question ultimately turned on the assertion that postmodernism denies the existence of truth, including moral truth. When that was probed, it turned out that this person had been listening to reporting people had been doing lately on Aleksandr Dugin.

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