Month: September 2018

Given the hyper-politicization and downright toxicity that define Brett Kavanaugh’s confirmation process, it’s hard to predict what bearing an objective analysis of Christine Blasey Ford’s accusation against him will have on the outcome. Very little of the massive political and media attention heaped on this subject addresses the specifics of the case. Another challenge is the age of the accusation and lack of key factual details supplied by Blasey Ford. If one does focus on the specifics, however, a recent development looks to be highly relevant.

Last Saturday night CNN reported that Blasey Ford had identified a longtime friend, Leland Keyser, as someone who attended the party where the alleged assault occurred. After Keyser was contacted by the Senate Judiciary Committee, her lawyer submitted a statement to the Committee that “Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without Dr. Ford.” Keyser’s statement means that none of the four people named by Blasey Ford as attending the party support her claim that it ever happened. Kavanaugh and Mark Judge, whom she named as a witness to the assault, both vehemently denied her allegation. The other person she named as being at the party but not witnessing the assault, Patrick (“PJ”) Smythe, told the Committee he had no knowledge of any of it.

On top of the absence of witness corroboration, there seem to be no other investigative avenues available to either confirm or refute Blasey Ford’s accusation given her own lack of recall as to the date (even the year), location, and other basic aspects of the alleged assault. Therefore, the truth or falsity of her charges probably can never be determined definitively. Nevertheless, Keyser’s lack of knowledge casts serious doubt on Blasey Ford’s account as she has presented it thus far, particularly since Keyser is a close friend and supporter of hers. (She says she believes Blasey Ford even though she cannot vouch for any of her story.)

Blasey Ford and her lawyers brushed off Keyser’s lack of recall. Blasey Ford told the Washington Post that she didn’t expect Keyser to remember “because nothing remarkable happened there, as far as Keyser was aware.” In commenting on the CNN story, Blasey Ford’s lawyer added that Keyser couldn’t be expected to remember the party because “nothing of consequence happened to her.”

These explanations strain credulity when considered in relation to Blasey Ford’s account of the events of that night. According to her Post interview and letter to Senator Feinstein, the “stumbling drunk” Kavanaugh and Judge “corralled” her into a bedroom as she was headed for a bathroom up a short flight of stairs from the living room. They played loud music from the bedroom and Kavanaugh put his hand over her mouth to stifle her screams. She feared Kavanaugh might kill her. Kavanaugh was on top of her on a bed trying to remove her clothing. At some point Judge jumped on top of Kavanaugh and her, “sending all three tumbling.” She got away, ran across to the bathroom, and locked herself in. (It’s reasonable to assume that Blasey Ford would have resumed screaming audibly upon her escape from Kavanaugh.) Kavanaugh and Judge then “loudly stumbled” down the stairs and engaged the other two people who were there (Keyser and Smythe). She subsequently exited the bathroom, ran down the stairs, and “fled the house.”

The events Blasey Ford describes were raucous and dramatic to say the least. Surely they would have been quite “remarkable” to Keyser, as well as frightening and memorable, if she had noticed any of them. Moreover, it’s hardly plausible that Keyser could have been completely oblivious to the loud and chaotic scene going on around her, particularly since she was one of only two other people in the house. The lawyer’s suggestion that Keyser put all of it out of her mind because nothing bad happened to her personally is no more plausible.

Finally, victims of sexual assaults often fail to tell others about them for a variety of reasons. But is it plausible that Blasey Ford would not have said anything to Keyser about Kavanaugh and Judge either as she was fleeing the house or within days thereafter, if only to warn her about them? After all, she describes them as dangerous, perhaps even homicidal, sexual predators and it was certainly foreseeable that her close friend Keyser might encounter them again. At the very least, one would have expected Blasey Ford to give Keyser (as well as her other friends who ran in the same circles) a general warning to steer clear of these guys without necessarily going into the details of her assault.

Of course, none of the above proves that Blasey Ford’s accusation is untrue. Absent a Perry Mason moment at the upcoming hearing or another game-changing development, we probably will never know for sure where the truth lies here. However, the lack of recall by anyone supposedly present at the party, particularly Keyser, raises a host of questions for Blasey Ford. Hopefully, they will be explored fully and fairly at the hearing.

N.B. The Kavanaugh confirmation mess changes daily. New uncorroborated charges of sexual misconduct against him emerged last night. It would not be surprising to see more come out of the woodwork as the week progresses. However, such accusations may backfire against Kavanaugh’s opponents and generate sympathy for him if they continue to be unsubstantiated and increasingly far-fetched. For example, Michael Avenatti, showboating lawyer for porn star Stormy Daniels, claims to have multiple witnesses who say Kavanaugh organized and participated in gang rapes of drunken girls while in high school. If the FBI missed something of this magnitude during their many background investigations of Kavanaugh, calls for them to do more on the case clearly are misguided.

 

 

 

 

 

Republicans were roundly condemned for denying Merrick Garland a confirmation hearing. If his hearing would have degenerated into anything like Kavanaugh’s, maybe they did him a favor. The Kavanaugh hearing unfolded with all the seriousness and probity of a Jerry Springer show. CNN derided it as “one of the most vindictive and ill-tempered congressional hearings in memory.” The New York Times described it as the “new reality” of Supreme Court confirmation hearings, consisting of “pandemonium, protesters and razor-sharp partisan lines.” Republican Senator Lindsay Graham observed that comparing the hearing to a circus was unfair to circuses.

Republicans got it off on the wrong foot by pushing too quickly in their desire to get Kavanaugh seated by the start of the Supreme Court’s October term. This resulted in an obviously rushed document-production process featuring a massive data dump on the eve of the hearing and the initial withholding from public access of documents that were later cleared for release. However, disputes over documents were largely a sideshow. Most Democrats announced their undying opposition to Kavanaugh as soon as he was nominated or even before. It’s clear that all Democratic members of the Judiciary Committee were poised to vote no even had they been furnished every unredacted page of every document that passed Kavanaugh’s way during his White House years.

With Chairman Grassley only 13 words into his opening statement, Democrats began taking turns attempting to sabotage the hearing with carefully choreographed interruptions expressing faux outrage over document issues. They were abetted by equally organized outbursts from plants in the audience. One wonders how the protesters seemingly monopolized public seating. Did they crowd out ordinary members of the public who simply wanted to observe the hearing? Do they face any consequences? No matter; Democratic senators generally praised the protesters for their outrageous behavior. In a particularly disingenuous exchange, Senator Durbin told Kavanaugh:

“There have been times where [the protesting] was uncomfortable. I’m sure it was for your children. I hope you can explain this to them at some point but it does represent what we are about in this democracy . . . What we’ve heard is the noise of democracy.”

What was Kavanuagh to “explain” to his young daughters, that the vituperation heaped on their dad by an uncivil mob was a civics lesson-worthy example of democracy in action?

Outbursts from the audience persisted throughout the hearing as did grandstanding and demagoguery by senators opposed to Kavanaugh. Two Judiciary Committee Democrats, using the hearing as a stage to audition for their upcoming presidential election bids, led the charge. Kamala Harris was the first to interrupt Grassley and later drew attention by her evidently false and McCarthyesque insinuations that Kavanaugh had contacts with Trump lawyers relating to the Mueller investigation. However, the grandstanding Oscar went to Cory (“Spartacus”) Booker, who flaunted his courage in violating Senate rules and risking expulsion to release confidential emails about Kavanaugh. It turned out that the emails already had been cleared for release, as he apparently knew. In any event, they had little significance. (See here and here.)

There’s a tendency to pick “winners” and “losers” from such events. In that spirit, I’d offer the following:

Kavanaugh was the primary winner. He successfully executed the standard nominee game plan of displaying legal acumen while saying little of substance, avoiding major gaffs, and suffering abuse from senators as gladly as possible. From a nominee’s perspective, the confirmation process has become akin to a fraternity initiation rite in which the goal is to emerge unscathed from a few days of unpleasant but inevitable senatorial hazing.

Presidential wannabes Harris and Booker also could be considered winners insofar as their histrionics played well with the Democratic base and their media allies. (See here and here.) However, this doesn’t bode well for the public. It signals that Democrats plan to defeat Trump in 2020 by out-Trumping him with falsehoods, violation of norms, and boorish behavior that equals or exceeds his own.

It’s hard to see any positives for other Committee Democrats. They seem to have won no converts. If anything, their over-the-top theatrics probably solidified support for Kavanaugh among Republicans and pushed the few Democratics still on the fence closer to voting for him. One of these fence-sitters, Joe Manchin, said of their tactics: “Not the way I was raised.”

In fairness, Democrats had little ability to impede Kavanaugh. They effectively made themselves irrelevant bystanders this time around with their pointless filibuster of the Gorsuch nomination. Their only realistic goal was to show their base what a disruptive “resistance” they could be. But their efforts fell short even here as they were still rebuked by leftist interest groups. These groups reserved special scorn for Ranking Committee Member Dianne Feinstein who was the one Democrat to refrain from the initial interruptions and, even worse, had the temerity to apologize to Kavanaugh for the “circumstances” of the hearing.

In the final analysis, the primary losers from this sorry spectacle are our governmental institutions, and ultimately therefore, all of us. For those (hopefully few) who take it seriously, the hyperbolic rhetoric about Kavanaugh undermines confidence in his integrity as a judge. More generally, the increasing politicization of judicial confirmations demeans and threatens the integrity of the federal judiciary as a whole. Partisans on both sides constantly reinforce by their words and actions a growing perception that judges are merely “politicians in robes” who decide cases based on their policy preferences rather than objective legal criteria.

The Senate also emerges as a major loser. Its abuse of confirmation hearings over the years has stripped them of any value. Confirmation hearings for Supreme Court nominees are of surprisingly recent vintage. The first occurred in 1916, and it was not until 1959 that a nominee was subjected to serious questioning. Hearings over the next few decades were sometimes illuminating in exposing the weak qualifications or ethical shortcomings of several nominees. However, their value greatly diminished in the aftermath of the 1987 Robert Bork fiasco. Bork, an eminently qualified if arrogant nominee, engaged in substantive and robust debate with Senators at his ill-fated confirmation hearing. For this, he was mistreated so severely that his name became a verb. (Bork: To “obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.”)

Later nominees learned from Bork’s experience that the best approach is to say as little as possible about their substantive legal views. This led current Justice Elena Kagan to describe confirmation hearings (some years before her own) as a “vapid, hollow charade.” With Kavanaugh, the hearings have degenerated from charade to downright ugly farce. On top of this, the willingness (even enthusiasm) of Senator Booker and others to flout Senate rules and release confidential documents (or at least pretend to do so) will likely result in even greater reticence to share documents with the Senate for future confirmations.

Confirmation hearings have become so worthless, if not worse than worthless, that some have called for their abolition. A less extreme approach might be to remove cameras from the hearing room. This would at least discourage the shameless posturing and demonstrations. One recurring question asked at these hearings is whether the Supreme Court is right to prohibit television coverage of its proceedings. Kavanaugh’s hearing certainly strengthens the case for continuing the ban.

The media face major challenges in the age of Trump when they are labeled the “enemy of the people” and their work product is condemned as “fake news.” In the face of such attacks, it’s perhaps understandable that many journalists respond in kind. However, public confidence in the media has been on the decline for years, well before Trump came on the scene. If journalists want to regain their credibility, they need to move away from their fixation on Trump and take a hard look in the mirror. There are many root causes for poor perceptions of the media that have nothing to do with Trump’s bombast.

Self-absorption. While the media perform a vital service in our society, they tend to focus too much on themselves and exaggerate their own importance. Grandstanding reporters like CNN’s Jim Acosta draw media coverage but probably turn off most of the public. The recent organized campaign of anti-Trump editorials came across as overly defensive in bemoaning the victimization of journalists. At the same time, the media seem reluctant to assume responsibility when misreporting occurs as it inevitably does. Prominent retractions and corrections are rare. Also, several major newspapers weakened accountability by abolishing their in-house “ombudsmen.”

Over-reliance on anonymous sources. National political coverage today features too little original fact-gathering and too much regurgitation of leaks from anonymous sources. This incestuous process serves the interests of leakers pushing their own agendas, often through actions that are unethical or even criminal. Reporters also benefit since they invest little effort beyond cultivating their sources. However, it doesn’t serve the public, who are left with no way of assessing the credibility of the reports.

A striking example is CNN’s recent “bombshell” story that former Trump attorney Michael Cohen would attest to Trump’s prior knowledge of his son’s infamous Trump Tower meeting. (More on this below.) The story was quickly parroted by other media outlets but now has been largely debunked. Meanwhile, CNN still stands by its story. This episode violates many journalistic ethical standards, including the following:

• Take responsibility for the accuracy of work.
• Verify information before releasing it.
• Use original sources whenever possible.
• Identify sources clearly to give the public as much information as possible to judge the reliability and motivations of sources.
• Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm and have information that cannot be obtained elsewhere. Explain why anonymity was granted.
• Acknowledge mistakes and correct them promptly and prominently.

Unfortunately, much reporting today violates one or more of these standards although less dramatically than the CNN episode.

Insularity, superficiality, and groupthink. Much journalism today lacks context, critical analysis and insight. These shortcomings recur across the ideological spectrum and probably stem more from intellectual laziness than bias. A prime example, and the greatest single hit to media credibility in recent history, was their almost universal cluelessness over the 2016 presidential election. In the immediate aftermath of the election, most media types blamed poor polling. However, based on additional analysis, Nate Silver at FiveThirtyEight attributed the failure to–

“real shortcomings in how American politics are covered, including pervasive groupthink among media elites, an unhealthy obsession with the insider’s view of politics, a lack of analytical rigor, a failure to appreciate uncertainty, a sluggishness to self-correct when new evidence contradicts pre-existing beliefs, and a narrow viewpoint that lacks perspective from the longer arc of American history.”

A study published in the Columbia Journalism Review sounded similar themes, concluding that “fixing the information ecosystem is at least as much about improving the real news as it about stopping the fake stuff.”

There is little evidence of lessons learned from the 2016 debacle. Most media outlets still appear to  filter what and how they report through narrow paradigms and serve largely as echo chambers for those perspectives. Similar themes are repackaged day after day in news stories and opinion pieces. For example, much of the media have flogged the theme of possible Trump complicity in Russian 2016 election interference ever since the election despite the absence of any supporting evidence to date.

So wedded are they to the collusion narrative that they cite as confirmation facts that imply the opposite. A recurring example is the Trump Tower meeting in which Russians offered to provide “dirt” on Clinton but actually came to lobby on another issue. It defies common sense that this farcical bait-and-switch meeting would have occurred if there existed an actual collusive back channel between Trump forces and the Russians. (See here and here.)

Mixing fact and opinion. The line between factual reporting and editorializing is increasingly blurred. One troublesome example is “fact-checking.” A recent study found that almost 25 percent of the Washington Post’s fact-check columns over an extended period addressed opinions rather than statements of fact. The Post’s fact-checkers have come in for criticism even when they assess facts. In  one case they distorted and then assigned their worst rating of four “Pinocchios” to a statement by Trump that was factually accurate and straightforward. Considering that Trump spews falsehoods constantly, fact-checking him should be like shooting fish in a barrel. Yet fact-checkers undermine their credibility when they overreach like this.

Absence of engagement and analysis. There is plenty of ideologically tilted reporting and punditry to choose from; it’s easy to find content that suits every taste. However, these contrasting narratives are like ships passing in the night. What’s missing is substantive analysis that engages with and meaningfully explores competing viewpoints. The only media outlet I can think of that does this consistently is PBS. Sadly, the public now may be so polarized that there is no longer a commercially viable market for the kind of objective, in-depth coverage that programs such as the PBS News Hour provide.

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Surely the Trump era presents a critical need for objective, substantive, and credible journalism. However, much of our media descends to Trump’s level rather than rising to the challenges he poses. Unfortunately, journalistic excesses play into Trump’s hands by diverting attention from his actions, providing fodder for his supporters, and giving pause to those who are skeptical of him. This will only change if journalists get a grip, step up their game, and reform their practices.