The Daily Parker

Politics, Weather, Photography, and the Dog

It's not "he said, she said"

Writing in Forbes, psychologist Todd Essig says it's perfectly plausible that Brett Kavanaugh has no recollection of what to Christine Blasey Ford was a life-changing event:

It is distinctly possible that his lack of memory is not because it never happened but because he really has no recollection of it taking place. He never encoded the event. Therefore, he cannot remember something he never noticed, even though it proved to be life-altering for someone else.

As Dr. Richard Friedman wrote this week, an attack usually triggers intense emotions and stress hormones that facilitate encoding memories. That is why “you can easily forget where you put your smartphone or what you had for dinner last night or last year. But you will almost never forget who raped you, whether it happened yesterday — or 36 years ago.”

Of course, this doesn’t let [Kavanaugh] off the hook for what he did or at all suggest he either has or doesn’t have the qualities one needs in a Supreme Court Justice. It’s just that he may not be lying about what he recalls. It also doesn’t excuse the self-serving way he transformed the absence of memory into the presence of certainty that something didn’t happen. A judge should know better than to rest his career on such a logical incongruity.

For another take on this phenomenon, check out Deborah Copaken's moving essay in The Atlantic, "My Rapist Apologized."

Damning with no praise at all

The two most prominent Republican women who write for left-leaning major newspapers are not happy with the Brett Kavanaugh saga. First, Michelle Goldberg says the current GOP elite are "pigs all the way down:"

Let’s start with Kavanaugh’s high school, Georgetown Prep, also the alma mater of Neil Gorsuch, Trump’s first Supreme Court pick. There’s now a wealth of reporting painting the private school as a bastion of heedless male entitlement. Kavanaugh’s high school friend Mark Judge — who Christine Blasey Ford, Kavanaugh’s first accuser, says was in the room when Kavanaugh allegedly assaulted her — has written extensively of his drunken teenage debauchery.

There’s no equivalent culture in which girls reap social capital for misbehaving. You rarely see women in politics or law who flaunt college reputations as party girls; the women who make it are expected to show steely self-control. In the rarefied social world that produces so many of our putative leaders, a young man who frequently gets blackout drunk, as Kavanaugh reportedly did, is a fun guy. A young woman who does so is a mess.

Watching all this unfold is radicalizing for reasons far beyond Republican mistreatment of Kavanaugh’s accusers. His story shows, in lurid microcosm, how a certain class of men guard and perpetuate their privileges. Women who struggle ceaselessly to be smart enough, attractive enough, ambitious enough and likable enough have been playing a rigged game. As they realize that, their incandescent fury is remaking our politics. We’ll know things have changed when palling around with sexual abusers carries more stigma than being abused does.

Over at the Post, Jennifer Rubin says, if Kavanaugh is a partisan hack, he should be questioned like one:

Judge Brett M. Kavanaugh shed any hint of judicial temperament on Monday night. He went right to the most partisan outlet, Fox News, which has been likened to “state TV.” He seemed a bit ill at ease in his role as victim during the softball interview. He teared up. He said he wouldn’t be chased out of the confirmation process. In doing so, he debased himself and the highest court.

By going to Fox News before appearing again before the Senate Judiciary Committee, he sank to the level of political partisan. As he claimed his growing list of accusers were . . . were what? — All loons? All partisans? — he made clear that he is not acting like an innocent man nor a judge. An innocent man and one of fine judicial temperament would demand an investigation to clear his name. An innocent man and a man steeped in due process and fair play would denounce reprehensible stunts such as trying to blame a completely innocent person using nothing but an old yearbook and Zillow. Such a man would not make a mawkish plea for sympathy, but rather, insist on a rigorous investigation of the facts.

Democrats should make clear that, in his hunger to sit on the Supreme Court, Kavanaugh has further politicized an already broken confirmation system and has done damage to the court. His indifference to transparency and fact-finding in favor of hardball political theatrics alone should be grounds for rejecting his nomination.

Because it turns out, making blatant partisanship part of the nominating process for a lifetime appointment makes the body itself blatantly partisan. We have the Republicans to thank for that, more than the Democrats, whose partisanship extended to bouncing Robert Bork because—wait for it—he was too partisan to sit on the Court.

The Republican Party can barely get through a morning without demonstrating their disdain for the voters who put them in office. And in their desperation to stay in power, they're destroying the system they're sworn to "protect and defend." Which may be part of their plan.

Lunchtime reading

Lots of stuff crossed my inbox this morning:

Back to my wonderful, happy software debugging adventure.

Rushing to seat a Justice

James Fallows says the Republican effort to put Brett Kavanaugh on the Supreme Court without adequately weighing some key evidence risks a multi-generational error:

During his confirmation hearings for the D.C. Circuit Court 12 years ago, Kavanaugh denied under oath that he had participated in certain specified partisan fights. Two senior, hyper-cautious Democratic senators – Patrick Leahy, and Dianne Feinstein – have, along with others, now come out with statements that Kavanaugh was lying under oath in 2006, and is doing so again now.

Was he? This matters.

Every modern-era judicial nominee has mastered the art of dissembling, and pretending to have a completely open mind and a “I just call the balls and strikes” objectivity about every controversial issue.

But actual lying is something different. Clarence Thomas’s interlocutors believed that he was lying about Anita Hill, and the intervening years makes it more likely they were right. This is the first time I’m aware of, since the Thomas hearings, in which Senators opposing the nomination have come out to say: this nominee is lying under oath. It is worth knowing the truth before the now-or-never vote is cast.

The second question involves finances.

Brett Kavanaugh has some major financial gray-areas in his recent past. The very large credit-card debts, suddenly paid off?

Maybe this all is nothing. But the Senate is ramming through a vote before anyone knows what’s there.

Only 51 days until the election.

It's grim, but we've been here before

Josh Marshall says that, despite what will probably come from a hard-right Supreme Court over the next few years, this isn't the end of the left:

Elections have consequences. Often they are profound consequences stretching years or decades into the future from their inception point. Trumpism is civic poison. There is a temptation to think that this is another reverse coming after Trump’s election, the U.S. withdrawal from the Paris Climate Accord, the reversal of DACA protections and more. I don’t see it that way. These jolts are really only absorbing, fully recognizing the consequences of what happened in November 2016. Once we ingested it into the body politic all sorts of outcomes became either inevitable or possible. [Trump appointing a second conservative justice] is just one more of them, though perhaps the most consequential yet.

Jeffrey Toobin says Roe v Wade will be overturned and abortion in 20+ states within 18 months. This is far from the only change we are likely to see in short order. The most visible, high-profile Court issues tend to be those centering on questions like abortion rights, LGBT equality, religious liberty. Far less visible, though no less consequential, are the issues I expect a new Court to focus on most: using the scaffolding of the law to block legislatures from addressing key economic questions facing our society, much as the Court did in the late 19th and early decades of the 20th century. They are all important; they’re all down by six runs in the 9th inning.

How do we react? I wrote yesterday that we can’t expect the courts to save us. That was clear with yesterday’s decisions. It’s even more overwhelmingly clear today. Litigation remains critical. But the fight for voting rights, for instance, will be won at the ballot box. Change will come through robust political coalitions — at the local and state level, building to the federal level. Everything else must follow the same path. We are on our own, left to our own devices. The history, whatever mistakes, misfortunes and interventions, is simply the terrain we now grapple with.

Remember, the American populace will continue to look less white and less conservative as the years go on. And the Supreme Court will, with its coming 5-seat right rump, make decisions that more and more Americans find distasteful. The Republican Party have chosen the losing side, but like all people, they will fight harder to keep what they have than they fought to get it in the first place.

We've seen startlingly rapid reversals in American history, even when things looked the worst. The Court blocked FDR's first attempts to fix the economy in 1933-1935, but ultimately relented in the face of overwhelming popular support, which contributed to us getting out of the Great Depression.

Things look bad. But they always do right before they get better.

Elections matter

In a pair of 5-4 decisions today, the Republican Party's theft of Merrick Garland's seat on the Supreme Court paid dividends again.

The modern-day Taney court, with the Roberts minority plus Gorsuch voting one way and a majority of the country voting the other, ruled that President Trump's ban on immigration from Muslim countries was constitutional, but found that California's law requiring unlicensed "crisis pregnancy centers" to post a notice that they aren't licensed was not constitutional.

Add those to their decisions on Ohio's voter roll purge, American Express's gag orders, and mandatory workplace arbitration, and the Republican program to empower business at the expense of individuals continues apace.

Meanwhile, Michelle Goldberg says "we have a crisis of democracy, not manners," and says Trump Administration officials deserve public shaming.

One might hope that June 2018 will be the high point of right-wing retrenchment, but no, it'll get worse before it gets better. Enjoy.

Justice Thomas joins the liberals

In yesterday's ruling in Harris v Cooper, the Supreme Court ruled against North Carolina's blatant gerrymandering. The surprising bit is that Justice Clarence Thomas voted in the majority on both issues. New Republic's Scott Lemieux postulates reasons why:

In a 2015 case, Thomas provided the fifth vote to an opinion holding that Texas was not required to issue license plates with the Confederate flag as part of its option of personalized license plates. It is not terribly surprising that even a conservative African-American who grew up impoverished in the rural Jim Crow South would have a different perspective on the Confederacy and its legacy than the typical conservative.

Thomas’s votes yesterday were squarely within that tradition. His brief concurring opinion emphasized that the result comported with two of his longstanding views. First, he believes that any use of race by the government, for any purpose, triggers strict scrutiny, a high burden North Carolina could not meet. Since the state conceded that District 1 was intentionally created as a majority-minority district, this made the case easy for Thomas as well as the other conservatives.

He also explained that he joined the liberal faction with respect to District 12 in part because of his belief in deferring to the findings of the trial court unless it clearly errs.

This isn't an evolution, but who Thomas really is, Lemieux says. Maybe Antonin Scalia so overshadowed Thomas that we really didn't see it? I'll need more convincing.

Why try to filibuster Gorsuch?

Josh Marshall says the filibuster is already dead, so it's the right thing to do for Democrats in the Senate to force the Republicans to take the next step:

If Gorsuch will be confirmed one way or another, why go through the nuclear option motions? I would say it's important for this reason. I've heard a number of pundits arguing that the real issue here, or much of the issue, is that Democrats still haven't gotten over the treatment of Judge Garland. That argument is both deeply flawed and entirely correct. This really is mainly about Judge Garland.

As Rep. Adam Schiff put it yesterday on Twitter, Mitch McConnell's historically unprecedented and constitutionally illegitimate decision to block President Obama from nominating anyone a year before he left office was the real nuclear option. The rest is simply fallout. Senate Republicans had the power to do this. But that doesn't make it legitimate. The seat was stolen. Therefore Gorsuch's nomination is itself illegitimate since it is the fruit of the poisoned tree.

Democrats likely have no power to finally prevent this corrupt transaction. It is nonetheless important that they not partake in the corruption. Treating this as a normal nomination would do just that. There are now various good arguments to vote against Gorsuch's nomination on the merits. But to me that's not even the point. Democrats should filibuster the nomination because it is not a legitimate nomination. Filibustering the nomination is the right course of action.

The Senate is scheduled to vote tomorrow on the nomination.

In the news

Once again, here's a list of news items I haven't fully digested but want to when I have a few free minutes:

There's another major story that I'm following, about which I'll post in a few minutes.

Articles to read while waiting for my next online meeting

Hillary Clinton and Donald Trump won their respective Illinois primary elections yesterday. And in other news:

Time to write some documentation. Whee.