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I have a friend who teaches Gender Studies at a university back east. As you can imagine we have very different ways of looking at things. So different that when I tried to share a few posts with him, he claimed he couldn’t even talk to me about them without understanding my frame of reference and audience. (Also, he may have been trying to figure out how to call me a Nazi without using the word “Nazi”.) Given these difficulties (and the other various frustrations) after several awkward emails back and forth I decided that we should probably not try to talk about it. I suppose he felt similarly. Though, as it turns out, unlike me, he did manage to get some benefit out of the exchange. I found out last month that he was using some of my posts as examples in the classes he teaches. At the time he didn’t get into the details (and based on my previous resolve I didn’t press him on it) but it was clear that my posts were presented as an example of what not to do. Sort of, “Can you believe how clueless this guy is!” Though when I imagine it, I see him standing in front of his class shaking a printout of my writings and yelling, “This is what the patriarchy looks like!”
Of course, he could be entirely correct, it’s possible I’m just as clueless as he claims. As I have said repeatedly, I could be wrong, about everything. And if there was an area I was going to be wrong about it could definitely be everything I say with respect to the current social justice movement. Certainly there are an awful lot of people who think anyone who’s even remotely conservative is not only wrong about most things but hateful to boot, and I think it’s fair to say I’m at least “remotely conservative”. That said, no one is forcing anyone to read my stuff. (The same cannot be said for the millions of students who are daily forced to read whatever passes for the current progressive manifesto.) And much of what I write is just me thinking out loud, and I guess let he who has never had a bad thought cast the first stone?
As you can imagine all of this is leading up to another post which (if my friend reads it) will probably make it into his next class on feminism, as yet another example of my cluelessness, or my privilege, or something similar. But, if I have done poorly in the past, I am going to attempt to do better, or at least do a better job of considering as many viewpoints as possible. And on that note, I’m going to dive into the current political crisis: the Kavanaugh confirmation and the allegations of sexual assault by Ford and Rodriguez. Though before we begin I need to take a slight detour through my process. I work on my weekly post every morning for a couple of hours. Which means that what I’m writing right now was written on Monday the 24th, and so, by the time I publish this on Saturday the 29th, any number of things might have happened. In particular while Ford will have presumably testified by the time this is published, she hasn’t at the time of this writing. Also at this point the Rodriguez accusations are still pretty fresh, and I guess (now it’s the morning of the 25th) last night Stormy Daniels’ attorney, Michael Avenatti has announced that there’s a third accuser? All of which is to say that some of the things I say may be out of date by the time I get around to actually publishing this.
With all that out of the way let’s talk about Kavanaugh, though I guess yet one more preface is in order before I do. It should be stated that I write from the standpoint of someone with absolutely zero influence on whether he’s confirmed or not. This is enormously comforting. Also, as much as I might try to imagine my mindset if I did have an impact, it’s not the same, which means I will probably be too flippant and too confident. There are obviously things going on in the Senate which I am only dimly aware of. Whatever I say has no power to change the course of this confirmation hearing. I can’t delay it until the FBI investigates, nor can I push it through despite the evidence, but, all those caveats aside, it is my intention to approach things from the standpoint of someone who does have some impact in that matter and needs to decide what to do.
Join with me in imagining that you’re a member of the Judiciary Committee or just a Senator, period, and you’re trying to decide whether to confirm Kavanaugh. Let’s further assume that you were going to confirm him up until the Ford revelations, and you’re now trying to decide whether to change your vote based on those revelations. Ideally it would be nice to just know, with 100% certainty whether they’re true or not, in which case your decision is easy. But 100% certainty is not going to be possible in this case. You’ve got to make an absolute decision one way or the other despite the lack of any absolutes in the evidence. Needless to say, you’re operating under serious uncertainty.
For those who may not have been following it closely here are some things which might incline someone to favor one side or the other. All the things which appear to preclude absolute certainty, particularly for someone with an initial inclination to confirm Kavanaugh. Also, it should be mentioned, there are definitely people following this more closely than I, so I may miss something big. To be clear, these lists are not meant to be exhaustive.
- The events involved in the accusations happened a long time ago: It would be nice if everyone had a photographic memory of everything that ever happened to them but we don’t. Memory is fallible, and as much as we would like to believe Ford, you do have to take into account that it was 36 years ago. Also if he was a true predator you would expect more recent accusations.
- There are no contemporaneous witnesses: As far as I know there is no one (with either of the accusations) who is willing to come forward and say, I remember Ford telling me about it at the time. Yes, if it happened, not telling anyone at the time is totally forgivable on Ford’s part, but it makes things less certain now.
- The 65 women who signed a statement in defense of Kavanaugh: You certainly can’t imagine something similar happening with Weinstein, so I’d be inclined to give it some weight, though I’m not sure how much. (A statement which really applies to all these points.)
- The stakes of the whole thing: I’ve talked in the past about how the Supreme Court might be considered the true power in the United States, and given that Kavanaugh is likely to be more conservative than Kennedy, this hearing may be as consequential as a presidential election. And if Roe v. Wade is overturned (I don’t think it will be.) Then it would be more consequential. Lying about sexual assault is a rare and extraordinary act, but this is a rare and extraordinary situation.
- The vast majority of sexual assault allegations are true: It’s estimated that false rape allegations make up only 2% to 10% of all allegations. Now that’s rape, not sexual assault, but I assume the numbers (which in any case aren’t incredibly precise) are similar.
- Ford has sworn statements from people who say she told them about Kavanaugh’s assault before the nomination: three women and Ford’s husband have signed sworn statements saying they remember her mentioning the assault. The first instance of this was in 2012.
- The enormous cost of coming forward: Ford has suffered numerous death threats and had to go into hiding. I imagine (particularly if Kavanaugh is not confirmed) that this vitriol will continue for many years.
- Circumstantial evidence: Alcohol and partying seemed to be a big part of Kavanaugh’s life. Lots of people have in particular pointed at his statement in his high school yearbook with all sorts of references to drinking and sex. This apparently continued into college. Finally he was a clerk for Kozinski who was embroiled in his own scandal recently and ended up resigning.
Beyond what I’ve said above there are currently thousands of pages of commentary on each item. To say nothing of the motivations of the various secondary actors. (I haven’t mentioned Judge, or any of the senators.) But this should at least give you a taste of the muddy waters of uncertainty we’re jumping into. And here, approximately halfway through things, we’re finally ready to look at the various ways for approaching this uncertainty.
I’d like to start with a method I hope my friend the gender studies professor would appreciate, though it could just as easily fill him with rage. We’ll call it:
The Folded Paper System: Imagine that you take a piece of paper and you fold it. Now imagine that after it’s been folded for a long time you decide that folding it was bad idea and now you want the paper to lie flat. If you just unfold it and set it down the paper will still bend in the direction it was originally folded. It’s only if you fold it aggressively in the other direction that it will actually lie flat. This can be viewed as a metaphor for past injustice. It’s indisputable that in the past men got away with a lot more sexual harassment than they should have. Or to put it another way, in situations of he said-she said, the “he” was believed a lot more often than the “she”. Or to put it yet another way, the standard of evidence for accusations was tilted against women. All of this is the original fold.
Now we want the paper to lie flat. We want everyone to be believed equally, all evidence weighed equally, and a gender-blind justice to prevail. But in order to get to that point we have to instead fold the paper the other way. We have to give women the benefit of the doubt, in cases of he said/she said we have to believe the “she” more often than the “he”, we have to tilt the standard of evidence in favor of women. That in areas of massive uncertainty, like with the Kavanaugh nomination, we should believe the woman.
I’m sympathetic to this system, and the folded paper metaphor is arresting, but I think it only takes you so far. Culture is not a piece of paper, and when you bend stuff back the other way, you’re implicitly saying that unfairness in one direction is going to make up for unfairness in the other direction when in reality you have just compounded the injustice.
The “What’s going to get me re-elected” System: On the one hand you would hope that this isn’t the system any of the Senators are using and on the other hand it’s probably the system they’re most likely to use. For Republicans my guess is that they’re getting a lot of feedback from their base along the lines of, “Ford is lying and if you’re too stupid to see it or to spineless to push ahead regardless then you won’t be getting my vote in the next election.” (Possibly with several additional profanities thrown in.) And on the Democratic side of things I assume they’re getting something similar, but in the opposite direction.
As I said I hope this isn’t the primary consideration of any of the Senators, but I’m not naive enough to assume that’s actually the case. And even if, by some extraordinary exercise of ethics it’s not the primary consideration it has to be among the considerations. And unfortunately this is not a bug in our system, this is a feature. A feature that may have unfortunate effects in situations of high emotion and polarization, but we also definitely don’t want the reverse, where our representatives never take our opinions into account.
The Wisdom of the Crowds System: Closely related to the above, we could take a broader sample of things. There are various polls and prediction markets with their own take on the accusations. And insofar as these represent a broader snapshot of public opinion than just listening to the most vocal members of the two parties, it could be argued that they’re preferable. On this count we have the favorability of Kavanaugh on steady decline and places like fivethirtyeight.com advising Republicans that the least bad option is for Kavanaugh to withdraw as soon as possible. On the prediction market side of things I don’t see anyone actually predicting whether Ford is telling the truth, but we do have one for whether Kavanaugh will be confirmed which after surging to over 50% on Tuesday dropped to 40% after the latest accusations (The Avenatti/Swetnick accusations, I’ll get to those, before the end.)
Robin Hanson (who coincidentally) invented prediction markets, went a step beyond that and posted a poll on his twitter account. The question was:
What fraction of women assaulted by a nominee for Supreme Court in high school would wait to publicly accuse him not just 30 yrs, but after Congress hearings & just before Congress vote?
He gave people the options of:
- < 1%
The most popular response, with 62% of the vote was “<1%”. Of course he also got many responses claiming that he was “pro-rape” for even asking that question. Though being fairly familiar with Robin Hanson (I just finished Age of Em which I’ll talk about sometime in the next few posts, also I we did meet once, briefly) I don’t think that’s what was going on. He claims he genuinely didn’t know what the response would be. And was surprised to see such a huge percentage in the less than 1% category. I believe him on this point, and I also think that something like this should be a valid question.
We all have an opinion on whether something is likely, but perhaps we’re horribly biased on that question in ways we don’t even realize. And being able to ask a large group of people whether it’s just you or if X seems unusual, should be perfectly acceptable, particularly when it’s consequential. Now the appropriateness of asking the question is separate from the utility of the answers. I totally agree that it was appropriate to ask the question, but I also don’t think twitter polls should carry a huge amount of weight, though if I was a Senator and I came across it, I probably wouldn’t give it zero weight either.
A System of Strict Utilitarianism: While all of the systems I already covered have some degree of utilitarianism to them, this system imagines a Senator making his decision entirely based on long term machiavellian calculus that has nothing to do with the actual accusation. Perhaps it’s a Republican senator who feels so strongly that abortion is wrong, that despite believing Ford and her accusations, votes to confirm Kavanaugh anyway based on the chance that he could be instrumental in overturning Roe v. Wade.
On the other hand you might also have a Senator that firmly believes Kavanaugh, but thinks that elevating him to the Supreme Court would fatally undermine the court and by extension the entire nation leading to some future catastrophe. Or that it would create an immediate catastrophe in the form of widespread civil strife.
I either case the utilitarian calculus could move them to vote against their present best guess of the facts in the favor of some greater payoff later.
Antifragility: I talk a lot about antifragility in this space. Which may appear to be another form of long term machiavellian calculus, though with more focus on embracing short term pain and less focus on any kind of future knowledge, than the previous options. Also with a greater focus on long-term norms. So how would an antifragilist vote? What criteria would they use?
Frankly I’m not sure, the whole situation is a giant mess. It’s kind of hard not to feel that things are definitely off the rails, and it’s far too late and there’s far too much momentum for the actions of any one Senator or group of Senators to avoid a large negative outcome. (Speaking of any one Senator, it’s now Friday morning and I just saw where Flake has agreed to vote for Kavanaugh at least at the committee level.)
I do think there have been a lot of decisions which seemed great in the short term but which had long term costs which are only now becoming apparent. The list of things which contributed to the current debacle include, but are not limited to:
- Merrick Garland
- Bill Clinton’s various sex scandals and the lack of any consequences
- Bush v. Gore
- The Bork Nomination
- Roe v. Wade
At this point, I think the best we could hope for is a backroom deal where the Republicans agree to withdraw Kavanaugh in exchange for the Democrats agreeing to confirm Amy Coney Barrett even if the Senate changes hands in November. I can’t see such a deal being made at this point, and maybe even this idea would be just another short term bandaid with long term costs.
Beyond what I’ve just discussed, there are, of course, many other systems you might use. And some might in theory be based on the evidence. Perhaps you’re convinced, after listening to Ford and Kavanaugh, that it’s obvious that one of them is lying and the other is telling the truth. Perhaps you think the evidence shows that women never lie about these sorts of things (I don’t think it does, which makes this more of a folded paper system, but that’s just me.) But I think most such, supposedly evidence-based systems, are just covers for one of the systems I mentioned above, and most likely a cover for the “What’s going to get me re-elected” System. You may have noticed that there was really no new evidence of any substance during Thursday’s hearing and yet everyone seemed more convinced of whichever position they had before the hearing started. Meaning whatever system they were using it wasn’t based on the accumulation of evidence.
In conclusion I’d like to offer up a few miscellaneous observations:
Observation 1- As an example of people following their biases rather than the evidence. We’ve reached the point where how you feel about the credibility of an accusation is entirely based on the party of the accused. From the American Conservative:
According to a recent YouGov poll, 53 percent of Democrats consider Ford’s allegations credible, compared to only 4 percent of Republicans. Ah! Yes! Down with the evil, misogynistic GOP—the “party of rape,” as I’ve seen them called on Twitter.
But wait. Meanwhile, in Minnesota, Democratic Congressman Keith Ellison is currently favored to be elected as the state’s next attorney general despite ex-girlfriend Karen Monahan’s allegations of sustained “emotional and physical abuse.” One poll shows that, while 42 percent of Republicans believe Monahan, only 5 percent of Democrats do.
Observation 2- For a long time people have been complaining that worthwhile candidates for high government office are being discouraged from accepting nominations because of the media circus which immediately ensues. This is certainly not limited to just one side or the other, and it’s hard to see how the Kavanaugh hearing won’t make this problem (whatever it’s actual impact) worse.
Observation 3- There has been a push recently to extend or entirely eliminate the statute of limitation on things like rape, sexual assault, attempted rape, etc. I know that sounds like a good idea, and I totally understand why people want to do it that way. But you can apply the same logic to essentially any crime. Why should any criminal be able to get away with it just because enough time has passed. This is one of those long-term norms I’m talking about. Statutes of limitation date back to Roman Times, Now of course the Senate wouldn’t care about the statute of limitation even if there was one, I’m just making a related but not directly applicable observation.
Observation 4- I’m sorry, I’m calling BS on the Avenatti/Swetnick accusation. It just sounds too much like what people imagine happens at a drunken high school party with evil dudebros. Also Avenatti does not have the best track record on this sort of thing. Finally, I would expect this to be the kind of thing that is so outrageous that it should be easy to verify. And given that this is the first we’re hearing of it despite all the attention, I’m declaring, that this, at least, didn’t happen.
As I end, Kavanaugh has made it out of committee, and Flake has called for an FBI investigation before the full vote. I suspect that means we’ll get one. I think that’s a good thing. Certainly not sufficient to calm anyone down, but I think that’s what I probably would have done as well. Though as I said in the beginning, the biggest takeaway here is that I’m glad I’m not the one deciding.
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