On the Process of Confirming Power

Judge Brett Kavanaugh takes oath of office, June 1st, 2006. By Eric Draper.

The confirmation of Judge Brett Kavanaugh exposed deep, painful divides in our nation, bringing to the forefront our disparate conceptions of truth and justice. How should systems of oppression be acknowledged in our political proceedings? How do we enact and uphold processes that ensure fair judgement? We here at SKEPTIPOL discuss several of these viewpoints in our new series, Truth vs. Power.

Brett Kavanaugh’s Senate hearing exemplified a common political tactic that hedges a bandwagon moralistic response against critical reasoning removed from emotional underpinnings. Over the course of the confirmation process, constituents continually failed to uphold the correct terms of assessment for those we place in national trust.  I will try to remove the emotional cloud that surrounded and continues to surround the confirmation process. I do so at the risk of being labeled everything from chauvinistic to “problematic.”  But the task at hand is so important, and so upside-down, that a re-evaluation is worth the potential fallout. A hypothetical scenario: you are in charge of appointing someone to a position of power. This position is one where the person will come to judge complex disagreements between parties. This person will compile everything they have learned about the system in which these disagreements take place to arrive at an appropriate and fair decision. These informed decisions will inevitably rely on some abstract reasoning for which there are no hard and fast rules. In short, this person needs to be ‘wise​’ as well as learned, the former being nearly impossible to untangle from things like ‘character’ and ‘bias’.  Therefore in confirming someone to this post, you must be concerned about two things: ​ 1.) Is the person nominated for the job knowledgeable about the system in which these disagreements happen? 2.) Is this person wise enough?

​What questions would you ask in order to deem this applicant worthy? You might ask how they feel about certain important resolutions to disagreements that have happened in the past. You may give them hypothetical conflicts in order to see what they say. If you are cunning, you may expose hypocrisies in their reasoning on different matters, real and supposed.  

Inevitably, you would ultimately like to know how their personal biases will affect their mental process. To do this, you look at their past decisions, and if they seem to be subjectively slanted. You would then have the opportunity to question this person on why and how that subjective slant would affect even more important decisions. 

"It is inherently difficult to look at her testimony with cold rationality, but it is vital to look at her accusations with careful and measured skepticism."

Let's look at these following incidents in different hypothetical contexts:

1.) The presumptive nominee was convicted of a DUI and was later found to rule leniently in cases where DUIs were brought before them.​ 2.) The presumptive nominee is a member of a certain club where wearing red is against the rules. Later, the applicant is found to have been harsher than usual when making rulings about defendants wearing red.  3.) An accuser asserts that the presumptive nominee has committed a horrific crime in the past.

In cases one and two, there are major problems for the public good. In the first case, the nominee's personal life has not been sufficiently separated from public life. In the second, an alternative system of judgement has been incorrectly assigned. Suffice it to say that the first two cases give us reason to believe that bias is being used haphazardly in clear, nearly provable, terms.

In theory, the final case sounds the most concerning. If it is true that a terrible crime has been committed by the nominee, it will no doubt call into question their wisdom and integrity. However, it is actually the least important. This is because there is no evidence outside of the accuser’s testimony. It would be misguided at best to weigh this scenario the most heavily. Doing so would attribute immediate credibility to an accuser with no evidence outside testimony. In fact, one ought to be especially skeptical of the accuser’s claims, given the timing of the accusations and its effect on a partisan political process. It is hard to argue against the notion, then, that extreme skepticism of both parties is wholly necessary. 

Also from Truth vs. Power: Opinion: "You're Not on Trial, and Other Lies"

The point of saying this is not to alienate anyone who believes Dr. Ford.  It is inherently difficult to look at her testimony with cold rationality, but it is vital to look at her accusations with careful and measured skepticism.  I observed the exact opposite sentiment from many of my friends and peers. Instead of careful consideration on whether this testimony should be considered at all, there grew a dangerous knee-jerk reaction to simply accept it as is. There was even a tendency to implicitly or explicitly suggest that it did not even matter whether Dr. Ford told the truth or not. In any other situation, this would be a departure from logical, procedural evaluation. 

I’ve come across the following headlines:

Dr. Christine Blasey Ford Is An American Hero (Huffington Post, Opinion Section, 09/29/2018)

Brett Kavanaugh’s Testimony Made It Easier Than Ever to Picture Him as an Aggressive, Entitled Teen (Slate, 09/27/2018)

Brett Kavanaugh’s Adolescent Tantrum Before the Senate Judiciary Committee (The New Yorker, 09/27/2018) ​ These articles, combined with the opinions I've observed on social media, gives a clear picture that most of my peers supported Christine Ford’s position as a moral act. This habit of granting someone blanket credibility, due to the visceral opposition against the levied accusation in question should be viewed by everyone as an extremely dangerous practice.

I do not believe Hon. Brett Kavanaugh or Dr. Christine Ford. I accept the testimony for what it is, one person’s account of a crime and the accused’s response. That being said, the burden of proof has traditionally been assigned to the accuser. It is equally alarming and bleak for the outlook of our democracy that such a large body of constituents willingly believed in either person’s account so easily, not caring whether either account was based in fact to begin with.

During this debacle, so many people seemed to abandon all lessons of skepticism, reason and neutralism in the face of an emotional testimony. I do not write this to say whether I believed one side or the other. If it had turned out to be the case that Brett Kavanaugh had lied, my point would have remained: that allegations sans evidence should not be taken as fact under any circumstance, especially one that turned out to be as politically divisive as this. 


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