The Kavanaugh hearings: lawfare used against us

Summary: The Kavanaugh hearings are lawfare at work, using our social norms and systems against us. Most recognize that this is a circus, but can neither explain why nor see a way out.

“What is left of the integrity of law and the responsibility of lawyers if legal provisions are turned into strategic tools to fight an enemy?”
— From “The Curious Career of Lawfare” by Wouter G. Werner in the Case Western Reserve Journal of International Law, issue 1 of 2010.

Lawfare

Lawfare (domestic use): The tactic of using – or misusing – law as a substitute for traditional political means to achieve an operational objective.

In Of War and Law (2006), David Kennedy discusses lawfare as a military phenomenon. But like so many aspects of modern warfare, it has leaked over to domestic politics, as Werner explains (slightly tweaked).

“Kennedy uses the notion of lawfare to address some fundamental concerns regarding the role of law in {political} affairs. The first concern is that a widely shared strategic attitude toward …law may eventually undermine the normative force of law. Specifically, if all parties concerned believe that legal arguments are produced merely to gain …political advantage, the integrity of law is at stake. Debates on the legality or illegality of behaviour then turn into a dialogue of the deaf …..as we use the discourse more, we believe it less – at least when spoken by others.”

Lawfare is a powerful tool, against which nobody has developed a defense.

This is the politics of America today, as seen in the Kavanaugh hearings. Over two centuries, justices of the Supreme Court have seized vast and ill-defined powers. Lifetime tenure with almost no de facto accountability makes them the undemocratic core of our current political regime (details here). A no-limits struggle for control of it is logical and inevitable.

An unlimited number of bien pensant liberal women willing to tell lurid stories of sexual assault, always a hot button in America (as many lynched African-Americans found). They testify in Cinderella mode (not warrior woman mode, I don’t need help from anyone).

Intense cross-examination is seen as unfair. “Survivors” of sexual assault cry watching their testimony. Liberals believe anything other than uncritical acceptance is evil. Even the best of the Left have joined the lawfare campaign against Kavanaugh. Extreme language is the order of the day.

A massive body of research proves that people – even police and attorneys – cannot reliably evaluate the truth or falsity of testimony. Yet this simple truth is ignored by everybody, including journalists. It ruins the narrative. So we get an audition, graded as performance art.

For the narrative to succeed you must not remember that false rape accusations by women are common. And that lies are an effective tool for political activists (when people no longer in Hell or care about honor).

Democratic Senators entered thousands of letters expressing tribal support for Ford into the record, as if that was evidence. Senator Feinstein invited actress Alyssa Milano to the hearing, as if she had any relevant expertise. The result was a circus, but not a fun circus.

This is lawfare. Democrats use the format of the hearings to create a morality play projecting a powerful emotional message. In modern America, social mechanisms of logic and law are easily manipulated – even overwhelmed. As a result, the government’s legitimacy erodes (also a goal of the far-right, since both Left and Right have turned against us).

This is another sign of the senescence of our political regime. We can no longer adapt to new challenges. People turn our own systems against us and we respond with befuddlement. Our future looks dark if we cannot do better.

Posts about the Kavanaugh hearing

  1. The Kavanaugh hearings’ warning: the Court is so powerful that extreme measures are appropriate to take control of it.
  2. Hidden knowledge: false rape accusations by women are common.
  3. Lies are a useful and appropriate tool to use for political conflicts.
  4. The Kavanaugh hearings: lawfare used against us.
  5. The heart of the Kavanaugh hearing is our false confidence in our ability to tell lies from truth.

For More Information

Ideas! For shopping ideas, see my recommended books and films at Amazon.

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Courtabout truth, about Reforming America: Steps to New Politics, and especially these…

  1. Lilliput or America – who has a better way to choose its leaders?
  2. The Democrats believe we are stupid. Are they correct?
  3. “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress).
  4. Trump’s win revealed the hollowness of US politics. Stronger leaders will exploit this.
  5. Can we love the Constitution without knowing what it says?
  6. The Constitution is dying.

Introducing “lawfare” and other forms of modern war

Unrestricted Warfare
Available from Amazon.

Unrestricted Warfare: China’s Master Plan to Destroy America.

By two then-Colonels in the People’s Liberation Army. From the publisher …

“A sobering and fascinating study on war in the modern era, Unrestricted Warfare carefully explores strategies that militarily and politically disadvantaged nations might take in order to successfully attack a geopolitical super-power like the United States. American military doctrine is typically led by technology; a new class of weapon or vehicle is developed, which allows or encourages an adjustment in strategy. Military strategists Qiao Liang and Wang Xiangsui argue that this dynamic is a crucial weakness in the American military, and that this blind spot with regard to alternative forms warfare could be effectively exploited by enemies. Unrestricted Warfare concerns the many ways in which this might occur, and, in turn, suggests what the United States might do to defend itself.

“The traditional mentality that offensive action is limited to military action is no longer adequate given the range of contemporary threats and the rising costs – both in dollars and lives lost – of traditional warfare. Instead, Liang and Xiangsui suggest the significance of alternatives to direct military confrontation, including international policy, economic warfare, attacks on digital infrastructure and networks, and terrorism. Even a relatively insignificant state can incapacitate a far more powerful enemy by applying pressure to their economic and political systems. Exploring each of these considerations with remarkable insight and clarity, Unrestricted Warfare is an engaging evaluation of our geopolitical future.”

45 thoughts on “The Kavanaugh hearings: lawfare used against us

  1. false rape accusations by women are common

    It is an elastic term. It would be better to say there are some false rape accusations. How many, or what proportion of accusations I do not know, and absent hard evidence don’t think anyone else does.

    In England and Wales there are 50-60,000 accusations to police a year, and somewhere around 65,000 rapes involving penetration according to surveys (with a rather wide spread of, from memory, 35-90,000 at the 95% confidence level).

    I do not believe, absent hard evidence, that all except the 6,000 which are prosecuted are false accusations, or of events which previously would never have counted as rape. Or that all except the 3,000 or so that result in convictions are false accusations.

    As to the testimony in the Kavanaugh case, you say:

    A massive body of research proves that people – even police and attorneys – cannot reliably evaluate the truth or falsity of testimony. Yet this simple truth is ignored by everybody, including journalists. It ruins the narrative. So we get an audition, graded as performance art.

    Can juries? You have confidence in juries, however.

    The account of the social milieu described by Ford seems to me as credible as deplorable, and there are other testimonies of the same sort regarding its nature. It struck me (unable to judge as I am) that Ford did speak with belief. Whether her recoillections at this distance in time were accurate, that I am unable to judge. Memory is a pretty frail reed at this distance, particularly if one was partly drunk at the time.

    I do not think that drunken misconduct as a teenager should be a permanent bar to future high office as a miiddle aged person with a distinguished record. It is not as if he was accused, arrested and convicted of rape in an unambigous court decision, by a jury for instance. With all their difficulty in evaluation of testimony!

    I also think that for young women to behave as described in other accounts, getting staggeringly drunk in the presence of equally drunken young men, in a sexually charged atmosphere, well that is idiotic. What were they thinking of? What were their parents and teachers thinking of, not to warn them.

    It is a total mess. If on the Committee however, given the number of reports, I would probably vote for a postponement for further investigation. And if forced to vote now, today, on what we know now?

    Probably against. Most uncomfortably. It would depend on the day. I might also decide that the issue was more a corrupt culture than a corrupt individual, and accept his denials. Could I vote to accept him if I believed the accusations? No, the issue would then be lying. Had he admitted them but claimed to be a changed man as an adult once he had left a culture which he now recognises as corrupt and corrupting?

    I don’t know. Thank God I don’t have to make that decision.

    The thing that seems to me to emerge with great discredit is the well heeled high school and college culture of the day.

    1. George,

      No more of these 500+ word essays about your personal feelings. Brief comments only, please. Facts or links to other analysis are also useful.

      These will no longer be posted. If you would like to write essays, start your own blog.

    2. I am curious why Larry Krummer has issued a ‘last warning’ to this 500 word essay, but not treated the 700+ word essay below it with similar curtness. While the 500 word essay is verbose for what it asserts, it does assert three things:
      1 – we have no idea how many claims are false.
      2 – juries are also not elected
      3 – the political decision is a toughy.

    3. K,

      That’s a good question!

      (1) Info has a long history of posting brief provocative comments. I often don’t agree with them, but they make me think. George has a history of the opposite, including often somewhat troll-like behavior. Providing misinformation, refusal to support claims, changing the subject when caught in falsehoods. The last is a troll tell: when caught, pretending to have been saying something quite different.

      (2) Info’s long comment is not an essay about his feelings, but an excerpt from a well-known conservative website. It gave useful and relevant historical information. Such material is always welcome here, whether or not I agree with it — or even like it.

      (3) Here is our comment policy. Note the emphasis on “short.” As above, I make exceptions for informative comments. Long essays are thread killers.

      Also note in it the many quotes from proprietors of major websites about managing comments. There are no easy solutions. It’s not something I do well. But the people who do it well are too smart to bother doing it. They either ruthlessly moderate comments (as many Leftist sites do) or do nothing — tending to create mobs screaming nonsense (common at many websites, with long empty threads).

      The FM website has material crossing ideological lines, which is rare these days. So the threads are often acrimonious, the voices of ouraged readers seeing their pieties screwered. I try to respond with a balanced and mild voice, but that often takes more character than I have on tap.

    4. “Can juries? You have confidence in juries, however.”

      Yes, because juries include more than eyewitness accounts in their evaluations. Expert testimony, photographs and recordings, medical records, police reports, etc. All of those can be dishonest, too, but at a certain point it would be more surprising if they were than if they weren’t.

    5. The Real Peterman,

      Plus, and most important, a jury of your peers has no axe to grind in your innocence or guilt (that would be reason to dismiss a juror). Unlike police and prosecutors.

  2. This problem of sympathy for the female guilty even dates back to the early 20th century:

    ——————

    ‘Why Are So Many Wives Killing Their Husbands?’ – Headline from 1911

    ”The idea of a woman turning murderess is so repugnant to the average man that he scarcely can believe it possible. And the story of society’s leniency to women criminals is as old as the mountains of India, as old as the Ganges or the Nile, old as the pyramids with all their secrets. And back of all of it is unwillingness of one man to believe that the women he knows to be infinitely softer, more tender, more abhorrent of violence than he could dabble her delicate hands in human blood. And some singer spoke the truth when he said such things as this:

    Cold eyelids, that hide like a jewel
    Hard eyes that grow soft for an hour;
    The heavy white limbs and the cruel
    Red mouth like a venomous flower.
    When these are gone by with their glories,
    What shall rest of thee then, what remain,
    O mystic and somber Dolores,
    Our Lady of Pain?

    ~ Perhaps Leniency Toward Women Murderers Account for It ~

    Whether this characteristic leniency of society toward women malefactors is responsible for the Amazing increase of husband murders of late is a matter, of course, of speculation. That criminologists should think so is not to be wondered at.

    The Anglo-Saxon people are pretty thoroughly convinced, as a general thing, that capital punishment is a great deterrent of murder. The thing is easy enough to demonstrate, the advocates of the extreme penalty say. Switzerland abolished it and murders increased so rapidly that it was restored as an experiment. Murders immediately decreased in number.

    Practically the same thing has been found true in France. For years the guillotine was in disrepute. And while its knife rusted in idleness France gave to the world some of the most appalling murders in the history of crime. The restoration of the death penalty was demanded by popular necessary.

    Even in the United States murders have increased in commonwealths that have abolished the gallows. There is a great city on the border line of the two mid-Western states in one of which hanging in the extreme penalty for murder and the other life imprisonment. Newspaper men of that city say they have had to record many more atrocious murders in the latter than in the former.

    If this be a true test, as it appears to be, justified by the fact, the criminologists strengthen their theory by applying it to women murderers. In late years but one woman has been put to death by process of law for murder. This woman’s crime was committed in a [sic] Eastern state and was most atrocious. She wished to be rid of her husband, with whom she had quarreled. She sent word she wanted to make up and named a trysting place of their sweetheart days.

    ~ Texas Case May Become an Issue in Political Campaign ~

    After they had kissed and made up they spent several house there. The woman playfully picked up a rope and asked her husband to tie her hands. He did so. She then said she bet she could tied his hands so he couldn’t get away. Laughingly he let her try. She called a half-breed Indian boy to her aid, when they had secured the man’s hands they deliberately murdered him and threw his body into a stream.

    Never was a more treacherous-crime committed. But when it was announced the woman was to hang, the Governor of her State was swamped with letters of protest. He withstood the pressure, however, and the sentence of death was executed.

    That case was an exception. Everywhere jurors simply refuse to pronounce sentence of death against the women. In the rare cases when they do, popular sympathy compels an executive commutation of sentence. Within the last few weeks, readers of the Post-Dispatch will remember, at least two Coroner’s juries have wept in sympathy with women who have killed their husbands.

    In the Forty-Eighth District Court of Texas the action of a judge in compelling the indictment of a woman who had killed her husband will be made a political issue. It is not impossible that the Judge will be defeated for re-election on the strength of it. Popular sympathy is with the woman, and, it must be admitted, that if murder is ever to be justified, the woman had a claim upon his sympathy.”

    —————

    1. Info,

      Nothing is new. In Charles Mackay’s wonderful (but not always accurate) Popular Delusions and the Madness of Crowds, see the chapter about “Slow Poisoners.”

      “Beckmann, in his History of Inventions, and Lebret, in his “Magazin zum Gebrauche der Staaten Kirche Geschichte,” or Magazine of Materials for a History of a State Church, relates that, in the year 1659, it was made known to Pope Alexander VII. that great numbers of young women had avowed in the confessional that they had poisoned their husbands with slow poisons. The Catholic clergy, who in general hold the secrets of the confessional so sacred, were shocked and alarmed at the extraordinary prevalence of the crime. Although they refrained from revealing the names of the penitents, they conceived themselves bound to apprise the head of the church of the enormities that were practised. It was also the subject of general conversation in Rome that young widows were unusually abundant. …

      “So rooted had it become in France between the years 1670 and 1680, that Madame de Sevigne, in one of her letters, expresses her fear that Frenchman and poisoner would become synonymous terms.
      As in Italy, the first notice the government received of the prevalence of this crime was given by the clergy, to whom females of high rank, and some among the middle and lower classes, had avowed in the confessional that they had poisoned their husbands. In consequence of these disclosures, two Italians, named Exili and Glaser, were arrested, and thrown into the Bastille, on the charge of compounding and selling the drugs used for these murders. “

    2. Interesting. And it seems also that the chivalric culture at that in the early 20th century time contributed significantly in the reluctance of men to hold women accountable for the heinous crime of murder.

      I think this website will be very enlightening as to how the foundation on our current Gender Wars as it took form in the west came about:

      http://gynocentrism.com/

      The foundations of men taking off their hats in the presence of women. Laying down their coat in the puddle etc.

    1. info,

      In a previous post, I went in some detail into the wildly conflicting studies about incidence of false rape claims – and why we just don’t know the answer. Websites like that trumpet studies that say what they like, and ignore the others. Just as feminists do. They are two sides of the same tribalist coin, making the gender wars toxic.

      Also, note the grim humor in Rolling Stone’s $1.6 million settlement with Phi Kappa Psi for their slander. They’ll donate a…

      “significant portion of its settlement proceeds to organizations that provide sexual assault awareness education, prevention training and victim counseling services on college campuses.” {WaPo}

      The money will go to radical feminists, who will push more still more false rape claims.

    2. ” Websites like that trumpet studies that say what they like, and ignore the others. Just as feminists do. They are two sides of the same tribalist coin, making the gender wars toxic.”

      It is a weakness of humans to be tribalistic in expense of the truth. What do you think is a good counter to that?

    3. Info,

      “It is a weakness of humans to be tribalistic in expense of the truth”

      That’s not my point. History is seldom the arrival of new things, but changes in the mix and magnitude of enduring traits of humanity. Tribalism waxes and reins. It’s expression is exacerbated or restrained by a society’s institutions.

      Tribalism was one of the top fears of the Founders. They called it “factionalism”, and designed institutions to limit it. We have thrown much of that away, since we’re so smart.

      Tribalism makes us easy to govern. See the posts in section 8 here for details.

      For the first step to overcoming this “disease”, see these posts.

  3. Also as a sidenote. The gender wars have heated up to the point that the RedPill subreddit is now quarantined. Go to the “The Red Pill community” page at Reddit and you will see this warning:

    Are you sure you want to view this community?

    This community is quarantined

    It is dedicated to shocking or highly offensive content. For information on positive masculinity, please see the resources available at Stony Brook University’s Center for the Study of Men and Masculinities.

    1. info,

      Thanks for that info. Reddit obviously believes that ThoughtCrime must be punished!

      I combined your two comments, and added the text of the Reddit notice. It was a nice touch of Reddit to refer people to the good leftists at Stony Brooks’ reeducation center.

    2. Info,

      This is an interesting phenomenon I want to write about: leftist-run companies at war with their clients. The good leftists running Reddit fight the users, often cheating. Leftist game developers try to re-educated their sexist clients, who get pissed off. Life is difficult for the morally superior when they seek to control and educate the masses.

  4. What to think about yesterday? The most helpful to me is a tweet from James Comey:
    James Comey (@Comey) 9/27/18, 9:32 PM
    Small lies matter, even about yearbooks. From the standard jury instruction: “If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness’ other testimony and you may reject all the testimony of that witness …”

    Kavanaugh is being appraised for an appointment to the USSC; it’s not a trial. Clearly he has been untruthful about incidental facts in his various testimonies. He should be rejected.

    1. Michael,

      What are you referring to? The Hill article about Comey’s remarks don’t show any such definite lie.

      https://thehill.com/homenews/senate/408885-comey-on-kavanaugh-small-lies-matter

      This also goes to essential madness of these hearings, asking people details about such long ago events. I don’t recall what I wrote in High School yearbooks, and couldn’t provide an explanation of what I was thinking.

      These hearings are performance art, grading people on the impression created. Pretty much guaranteed to weed out many sensible and competent people – who have no interest in joining the circus.

      We get the leaders we deserve. That maxim should frighten anyone watching Senate hearings.

  5. Larry,
    Here’s one link: “Brett Kavanaugh’s habit of dissembling makes it hard to take his word over Ford’s” by Matthew Yglesias at Vox.

    Another example is his answer to questions about a couple of (urban slang) terms appearing on his yearbook page (I’m 78 years old and had never heard of them.) One, “devil’s triangle”, he said was the name of a “drinking game” an explanation not supported by any number of commenters. Small things but overall my impression is that he’s very far from the level of honesty we should expect on the USSC.

    1. Michael,

      (1) “Here’s one link”

      I asked what was the basis for Comey’s claim that Kavanaugh lied. There is nothing in that article pointing to any evidence. Much of the article is absurd, propaganda that only true believers will love.

      (2) Quote: “and there is no conceivable motive for a false report in this case.”

      Typical Yglesias bs. The motive is to stop the nomination. The left has whipped up hysteria. My favorite is Paul Krugman’s hysterical: “Kavanaugh Will Kill the Constitution.

      (3) Quote: “Ford’s allegations without a meaningful investigation.”

      Investigate what? She has given different versions of the event. She doesn’t remember when or where it happened. The FBI isn’t magic.

      (4) Quote: “I believe Ford and Ramirez, in part, because I do tend to “believe women.”

      Unless they’re accusing Bill. Also, that’s sexist. Women are people, and lie just as often as men. False rape accusations are common (although we don’t know the rate). England’s policy of “believe the women” has produced an embarrassing crop of obvious false accusations — proven in court.

      (5) Quote: “In Kavanaugh’s case, the purpose was to butter up Trump.”

      Yglesias can read minds!

      (6) Quote: “His mentor, Alex Kozinski, a formerly well-regarded appellate judge, was reportedly notorious among insiders for his inappropriate sexual remarks …”

      Guilt by association! Shall we also use the dunking stool? I could continue, but pouring more water on a rock doesn’t make it wetter.

      (7) “One, “devil’s triangle”, he said was the name of a “drinking game” an explanation not supported by any number of commenters.”

      That’s your basis for rejecting him? That he remembered incorrectly a 30 year old slang term?

      (8) “my impression is that he’s very far from the level of honesty we should expect on the USSC.”

      Do you believe that you are fairly evaluating him — and that a Democratic nominee receiving such scrutiny, with equally unsupported claims, would also be rejected by you?

      Color me skeptical. My guess (guess!) is that you have demonstrated how lawfare is so effective in our increasingly tribal society. I’ll bet we will see more of it.

  6. I see the republicans complicit in replacing the rule of law with mob rule. All they had to do was say, “We take these allegations seriously and encourage Ms Ford to report them to a sex crimes detective in the proper jurisdiction for investigation. The US Senate nor the Washington Post legally cannot and will not do that.”

    Instead, they said, “Let the circus begin!”

    1. Allan,

      (1) “I see the republicans complicit in replacing the rule of law with mob rule.”

      While I agree with that as a general statement (imo both Left and Right in America are mirror images of each other, a fun-house mirror), I don’t understand how that applies here.

      (2) “We take these allegations seriously and encourage Ms Ford to report them to a sex crimes detective in the proper jurisdiction for investigation. The US Senate nor the Washington Post legally cannot and will not do that.”

      That would have been patronizing. Ford is not a child. She’s a 51-year old Stanford professor. Feminists would have rightly rebuked them for the GOP senators for “mansplaining” about something so obvious.

      (2) “Instead, they said, “Let the circus begin!”

      What do you believe the GOP leaders should have done differently?

  7. IMO: Evidence-less convictions are an anathema to the health of a democracy; The biggest victim in this ordeal has been our republic; All our freedoms and concurrent social civility depend on a working government and system of law.

    “”Small lies matter.”” I would maintain that Dr. Ford did worse in the memory department that Kavanaugh. I found her, by MD’s standard to be unbelievable. While reading MD’s account I was listening to a democratic senator describe the other allegations of drink and rape, how it fit together. Let’s use this as a basis

    Dr. Ford stated she had a beer. She stated that she went up to use the bathroom and got shoved into a room then bed. It is not believable that she could have a beer and then not know who pushed her. As she herself spoke of how one could trust her memory due to the excitement of neurons and blood flow from epinephrine, an unknown attack from behind would cause such a hormonal surge. It would also cause a reaction to turn and determine the attacker. Her reactions are wrong, her memory doesn’t match known human behavior of drinking parties, especially of the drink and rape parties conjured by the democratic senator, and her own memories, such as where were the adults.

    The reason, neither in a way should be believed, is because the format was that of an inquisition, not a court of law.

    LK:”I’ll bet we will see more of it.” Despite all the comments from both sides about justice and procedure, structure of the nominating system and politics will REQUIRE each side to do more of the same, IMO. That is why this behavior, and the Republicans are as guilty as the Democrats, will not only continue but most probably increase.

    1. John,

      (1) “I would maintain that Dr. Ford did worse in the memory department that Kavanaugh.”

      She was making a claim, albeit one lacking any substantive basis (eg, time and place). He was making a negative. Partisans usually find the former more compelling.

      (2) “I found her, by MD’s standard to be unbelievable.”

      Massive research have found that people have almost no ability to tell truth from lies. That’s why we need evidence, not just “he said, she said.” Even police and attorneys, who often claim to be able to do so, can’t. People claiming this ability are exhibiting the overconfidence effect (also well-established by psych research).

      “The overconfidence effect is a well-established bias in which a person’s subjective confidence in his or her judgements is reliably greater than the objective accuracy of those judgements, especially when confidence is relatively high.”
      — “The Role of Individual Differences in the Accuracy of Confidence Judgments” by Gerry Pallier et al, Journal of General Psychology, 2002. Gated. Open copy here.

      As to the validity of her story, you have no way to establish it. False accusations of rape are common (England adopted the “believe the woman standard”, and has had an embarrasing run of accusations proved false in court. They are a safe crime, since almost never punished.

      (3) “Despite all the comments from both sides about justice and procedure, structure of the nominating system and politics will REQUIRE each side to do more of the same, IMO.”

      What does that mean? I don’t understand what the “structure of the system” “politics” refer to.

  8. I want to comment on the following …..

    “Intense cross-examination is seen as unfair. “Survivors” of sexual assault cry watching their testimony. Liberals believe anything other than uncritical acceptance is evil. Even the best of the Left have joined the lawfare campaign against Kavanaugh. Extreme language is the order of the day.”

    It’s telling to me that Ford’s examination by Mitchell rather than vigorous was vanilla … antiseptic … deferential … tepid. Fault the damn fool Rhino process of Senators abdicating their individual responsibilities. Poor old clapped out Grassley slurred and slobbered his way through the mess with Hatch sleeping at his side. No wonder Rachel Mitchell had to be hired as a stand-in.

    The circus finally got underway and worth the price of admission when Lindsey Graham stepped up.

    As a former FBI Agent and retired U.S. Army Special Forces Intelligence Officer, here’s a little piece I’ve put together that could discredit me. But … “what the hey” … I had fun writing it anyway regardless the slime balls and spit that might be flung my way. It’s titled “Clyde (almost) went Crazy with Code and Christine Blasey Ford Believes Herself” found at The Ole’ Buzzard’s Blog here https://goo.gl/PbqLnW

    Still learning from y’all’s commentary and comments … thank you from … this (crusty) Ole’ Buzzard

    1. Wayne,

      From your post: “I believe that she believes herself.”

      We don’t know, of course. But it is easy to imagine. She probably started with memories of some incident. By 2012, her marriage counseling (aka “couples therapy”), she had firmed up the outlines. The story she told in her letter to Feinstein was quite different; we can only guess at why.

      But now she has told the story many times. It’s national. She’s committed to it. As research showed, stories get embellished with retelling. (The Satanic Abuse stories are the extreme example.)

      If she gets thru this — fame, book royalties, speaking fees, etc!

      The pressure must be immense. Good salespeople believe their story. It’s human nature.

  9. I don’t disagree; it was my poor effort to show the problems with using a lack of evidence as MB was doing. It is not about evidence but as you state the overconfidence effect. I will try to remember that in a similar post.

    The structure of the nominating for Supreme Court is a committee with a majority and a minority that sends, or not, a nomination forward to the whole body. The majority and a minority is a construct or structure. The politics I was referring to is that with current tribalism. For the Kavanaugh hearing, I see that the tribalism and this structure not only give positive feedback for tribalism, but the structure and its implementation, such as going from one side to the other for speeches, feeds a back and forth series where the feedback for tribalism meets a procedure that makes it easy to raise the stakes.

    I have a horrible habit of being long winded. I was hoping to make it less long and more interesting . Sorry for the lack of clarity.

    By the way, Blumenthal is now claiming that despite the vile way his family was treated, yesterdays defense by Kavanaugh renders him unsuited for the Supreme Court.12:58 PM on the committee broadcast.

    1. John,

      Nicely said. After all, this hearing has been an immense success for our leaders. Both tribes are excited, mobilized. Hatred of the other is aroused (Americans finding common ground is, imo, our leaders’ worst nightmare).

      “I have a horrible habit of being long winded.”

      Me, too. Making content concise and clear often over-taxes my resources – and requires more time than I have.

      Re: Senator Blumenthal (D-CT)

      Was there any doubt as to his response? But some got excited at this. As in at Elle: “Watch the Moment Sen. Richard Blumenthal Told Dr. Christine Blasey Ford: “I Believe You”.”

      Tribalism. Factions unleashed. The Founders are probably unhappy, but not surprised.

    2. Side note about Senator Blumenthal (D-CT)

      By our new standards of conduct for leaders, perhaps he should resign. He admitted to making false statements about his military service. Even the good lefists at Snopes had to admit this.

  10. I have been a trial lawyer for over 20 years. I have seen many people lie over the years.

    Memory is a tricky thing, and people can convince themselves of many things that did not happen. Cognitive dissonance often results in people misinterpreting events and then convincing themselves it is true. As such, fact witnesses are suspect if they lack evidentiary support. And we have a statute of limitations for a reason.

    Trauma victims often suppress difficult memories, only to have twisted memories remain or come back later. Could Ms. Ford been assaulted as a youth, only to forget it later, and then remember decades later? Yes. Does that mean her memory is correct? No.

    Her outright dishonesty over recent events and issues are pretty telling. She (or her lawyers did on her behalf) lied about air travel (an obvious ploy to delay as part of the overall strategy). She lied about a dozen other recent things related to strategy, attorneys, the media, and such). A decent cross examination would show she has been less then truthful.

    The lies about recent things largely preclude any credibility about ancient events. And she intentionally hid the details that would tie her down to easily impeachable facts such as where and when.

    1. Gaius,

      Thank you for sharing your experience with us! I was an arbitrator (very part time) for 12 years, and saw a tiny bit of what you see.

      I think I understand why the kid-gloves treatment of Ford’s examination. She’s a “survivor”, a protected class of victims. Asking rude questions would arouse wraith of many observers.

      Earl Stanley Gardner Perry Mason has a 1948 book about a similar situation: Case of the Vagabond Virgin (retitled for TV as “Case of the Vagabond Vixen”). The young pretty girls was lying. But searching cross-examination would alienate the judge and public. So he started with questions that seemed mild, but she could not honestly answer without ruining her narrative. It’s easier to do in fiction, of course.

    2. Nicely expressed, “A decent cross examination would show she has been less then (than) truthful. The lies about recent things largely preclude any credibility about ancient events. And she intentionally hid the details that would tie her down to easily impeachable facts such as where and when.” I believe your assessment parallels my, “… vanilla … antiseptic … deferential … tepid…” description of Mitchell’s examination. Except for Graham, the Rinos brought a butter knife to that gunfight. Thank you for your thoughts. The Ole’ Buzzard

    3. Thanks Gaius: “And she intentionally hid the details that would tie her down to easily impeachable facts such as where and when.”

      I nominate this as best of thread, but would add how.

      We had an accident involving a contractor. When he was deposed, he was very specific on how he got to A. He was very specific about how and what happened at C. But his answers on B were literally almost non-existent. I could not make sense of it. After the deposition, I re-enacted what he told us and found out what was missing. He had decided to do a dangerous maneuver in order to try to hide he had violated the rules. From outside and from where he started the maneuver, it looked easy. Hidden by the structure was an even deeper hole he could not jump. It also explained how he landed on his back, which we could make no sense of. This is why he hid the details.

      I tell this story because in the first minutes of Dr. Ford’s testimony was something so unbelievable and was similar in lack of details. Her statements about being shoved and not knowing who did this, and yet could describe the rest. The reason is that an automatic reaction to being shoved from behind is to turn for self protection and vision of potential threats. Putting hands over mouth but not eyes would mean she still had her 154 degrees of vision. The description she gave of the stairwell, bed, and room indicate she did have her vision, yet the B part of who pushed her does not make sense. Since she stated a beer was consumed, inebriation could not be the reason.

  11. John Pittmann “Since she stated a beer was consumed, inebriation could not be the reason.”

    She was 15 at the time of the alleged incident,so it is quite possible that she was not used to the consumption of alcohol. If you take into account that she the female physique responds less well to intoxication than men`s (their body contains 30% less water than men or the same weight, so alcohol is 30% stronger for them) it is not hard to believe that a single beer knocked her out. Of course, I wasnt present, so I am only speculating too…

    1. Tara,

      Alcohol is not magic. Unless she was a dwarf or had some unusual metabolic quirk – an identifiable medical condition – even chugging one bear would not produce such drastic effects.

    2. Tara, Dr. Ford invalidated your reasoning. In her testimony to support her case, she correctly identified the effect of adrenaline on memory. The reflex to turn, determine the threat, and response is part of the fight or flight reflex that is triggered with adrenaline, besides enhancing memory. Please reread Gaius’s comment as to why when and where are so important, and I added how. My question is how after being shoved from behind, and having the fight or flight reflex triggered to enhance her memory, how can she describe A and C well, but has an unreasonable loss of memory for B. This was in support of Gaius. There are little details in where, when, and how that will show the truth or falsity of a claim. From Perry Mason to today’s NCIS, and in countless detective mysteries, these details provide the information of who is guilty and is used for plot twists repeatedly. It is used daily in hundreds of cases presented to juries. Please note the comment in Gauis’ post “The lies about recent things largely preclude any credibility about ancient events. And she intentionally hid the details that would tie her down to easily impeachable facts such as where and when.”

      Unless you have been on a jury, or grand jury, it may be hard for you to realize how quick jurors pick up on this and discuss this. Just one incredible will shift jurors, multiple ones will often enrage the jurors to comment in a most unfavorable way to each other. The juries I have been on may be anecdotal, but I cannot believe it would be different for most jurors since the makeup of juries I have been on literally cover almost all walks of life, yet the reactions were universal. I think this what what Gaius was pointing out without saying juries or jurors.

    3. John,

      Two comments. First, I was in several fights in grade school – one potentially quite violent (6th grade, I was stopped before acting), one quite violent (high school, nobody stopped me). I still have memories of both. Confused memories. I don’t remember the date, I remember the location, I don’t remember the faces.

      Second, despite people delusional confidence, nobody can accurately determine truth or lies of a witness. Not even police, although they often believe they can.

      Gibbs, the human lie detector in NCIS, is as realistic as Superman.

      This is a major problem with juries, and why they should focus on evidence. Nobody has a solution or better system.

      I’m confident that eventually there will be a tech solution, and those people will at our jury trials as only little better than dunking stools or trial by combat. But that doesn’t help us today. Only humility can help, and that is among the scarcest of gems.

    4. Wayne,

      Yes, this is what I like to see. Clashing opinions, clearly and briefly stated. No trolls.

    5. Larry, I don’t disagree about the overconfidence or that Gibbs is superman. I was trying to draw a distinction in a previous post of mine, how persons would testify and then the evidence of small items would make their testimony fall apart. This was to Gauis’s points. I continued in that same thought with Tara. I should have referenced it.

      Also, I should have re-referenced the fact that the hearings were setup as an inquisition rather than a trial. To me as someone put in the position of trying to decide, as you correctly have pointed out, with biases and the overconfidence effect, the best I can do is analyse what evidence is presented even if small. For good or ill, when one is presented with someone’s testimony as to the truth, errors and obvious holes do constitute evidence.It may not in the final analysis support that the person is guilty of misrepresenting the truth or lying. That is why I have an undeniable love for the presumed innocence and beyond reasonable doubt standards, and for now jury trials, until something better.

    6. John,

      Nicely said. Thank you for the explanation. Seeing the context of comments is difficult!

      That hearings have become attempts to evaluate the moral state of the nominee is daft. Senators are the wrong people to do that, and the tools they have range from useless to inappropriate.

      On the other hand, it fits the larger pattern I’ve described – politics as entertainment for the outer party.

      https://fabiusmaximus.com/2017/01/03/america-today-path-to-reform/

    7. Larry: as you state in your path to reform link “Brilliant minds in the media business understand us, and so their products provide infotainment packaged as serious news and analysis. Fox was one of the first to realize this and the most determined to provide what we want — and so became the largest beneficiary from the evolution of Americans from citizens to subjects. To survive most of the news media must follow in their footsteps, or find patrons in the 1% to fund them (e.g., Jeff Bezos for the Washington Post, Pierre Omidyar at The Intercept).”

      The irony of watching those berate Fox while aggressively pursuing the same path must be a gift that our rulers cherish. It just keeps on giving!

  12. Larry. Alcohol is not magic, but it so happens that I have witnessed its effects on a person unaccustomed to it-one of my best friends when we were both 17 years old. He drank his first drink, a Tequila Sunrise containing only traces of actual tequila and was completely intoxicated. Now, of course, some 30 years on, he can hold his liquor…

    John Pittman. “how can she describe A and C well, but has an unreasonable loss of memory for B”

    Well, that is the way memory works-or not. Like Larry, I too was involved in a fight or two in High School-and took quite a beating. I remember accurately the persons involved, the place, but not the exact year. That does not mean the incidents did not happen.

    1. Taraxippos,

      We can only guess what happened to your friend so long ago, but it is unlikely to have been a biological effect of the “trace” alcohol. More likely it was psychological. As an analogy, there is no such thing as hypnosis. But stage hypnotists can have people sincerely do amazing things.

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