Confirmations, Decisions, the moment we are in

What follows is a series of items based upon various writings, posts, and thoughts I have had the last few days. Together, they kind of sum up my take on the Senate confirmation hearings for Judge Brett Kavanaugh:

Regarding the confirmation hearing, courts of law, and decision making:
Regardless of what the conclusion of the confirmation hearing, it will determine neither the guilt nor innocence of Judge Kavanaugh. Those are legal principles and this is not a legal proceeding. What we are witnessing is a political appointment, which no doubt does borrow some legal 'accessories' from the courts. Things such as sworn testimony and witnesses, but there is no guilt or innocence here. The question the US Senate is focused on is whether Brett Kavanaugh should be appointed to the US Supreme Court.

That decision is very different from one of him being guilty or not guilty of the crime of attempted rape or sexual assault. The requirements for guilt or innocence of that crime or any crime is simply much higher than the determination of whether someone should be appointed to the Supreme Court. The determination of the former, of guilt of a crime, entails or requires, a jury, a proper criminal investigation, and ultimately a trial. The key to such a determination is a trial where that jury will hear the evidence gathered during the course of that investigation and they would then determine if he is guilty beyond a reasonable doubt.

To arrive at a conclusion that is beyond reasonable doubt is a very high standard. Some would say it is an unrealistic or an impossible standard, but it is the ideal that we hold up as the ideal of our justice system. In most other situations in our lives we do not use such a standard. Decisions and commitments in most normal circumstances typically have to be made much quicker than what you see in a courtroom. We do not in our day to day decisions look for something to be true beyond a reasonable doubt.

"Beyond a reasonable doubt." In a court of law that means with certainty. We want to be certain he is guilty of the crimes he is accused. We are accusing a man of a serious crime and to find him guilty of that crime should require that the jury be certain of his guilt. We would not be satisfied with a jury that arrives at the conclusion of "yeah, it looks like he did it. Probably, he did it." Such does not work. At the end of their determinations the jury comes out of the room and says "We find him guilty" or they say "We find him NOT guilty."

We do not look for such certainty in our everyday life. We do make a range of decisions. Things such as did I turn off the coffeemaker this morning? (I like to turn it off, as I do not trust the automatic turn-off. It is an old coffee-maker.) Will I make the 7:03 train or is it the 7:31 again? Do I be good and stick with yogurt or go with a bagel this morning? Do I buy or lease a car?  I have been invited to a concert, but I am not a fan of that group or style of music; should I go? All of these involve various types of decisions. None involving a group of my peers, sworn testimony, nor a decision that requires that I am absolutely certain.

The closest thing to such a decision making process for most people is the approval for a mortgage. And that decision is not made by the individual, but the bank. They have a structured business process, a formula, based upon a business model that will determine who will and who will not get a mortgage. And that process does not arrive at certainty, but rather just a good bet that this person or persons will be able to pay off a 20 or 30 year mortgage. With that process the bank is "fairly' certain and with that willing to provide you the funds to buy a house or condo.

I digress, but the point is that the standard in a court of law is very different from the standard that people typically use in making decisions. To be certain typically requires confirmation, which could entail research, analysis, review of both standards (rules, regulations, guidelines, laws. . . etc.), and likewise the evidence (the data or facts). Rational decision making will always entail the application of some standard and some set of facts, some data set. The point here is that contingent upon the standard and the set of facts under review, the relationship of those will vary.

Everyday decisions, though rational are often made with limited knowledge. I would not have bought this car if I had known its history, or its manufacturer's history. I would have gone to the concert if I had known that they were performing that set of songs. I picked the Greek yogurt cause it tastes so good! People try to make informed decisions but all too often that is not possible. Either, they do not have the time or the information, both the standard, and / or the data, is often not available.

Lastly, decisions function in relation to what is being decided. The standards applied to the court, that of certainty, are reasonable considering the consequences. We do not want to see innocent men found guilty of crimes. Likewise, we make decisions on the fly in our lives. We are willing to spend some time researching the car we want to buy, the major we want to study in college, neighborhood and locale we want to live in. We do not spend all that much time regarding dinner, or the clothes we wear, or the TV shows we watch. We would like to think that the process we apply to a particular decision is appropriate. How a decision is made is contingent to what it entails, what are its consequences.

Now that I have beat a dead horse, let me quickly ties this back to the Kavanaugh confirmation hearings. Two things are playing out at those hearings. The senate will either confirm or not confirm Judge Kavanaugh for the US Supreme Court. The second is that the citizens of the US will also decide if he should be confirmed. One confirmation hearing and two different decision-making processes.

What does the public know and how best to gain that information?

I have engaged some who question what exactly the public knows. The suggestion I believe is that we do not know what actually happened, and as such we really cannot comment on all of this. This again goes to what is required to make such a decision, or in this case comment.

Now, I believe the allegation is that he was on top of her, holding her down, undressing her. I believe she attempted to say something, to yell out, and he covered her mouth. That is what is alleged. Meanwhile, I believe his the other young man in the room supposedly stood there and watched. This is purely my understanding and I have not gone out of my way to verify that I have it stated correctly. this is what I have pieced together via the various news reports, and commentaries that I have read and watched.

I don’t know why he stopped. I do not know how she got out of that room. I do not know if any of this is true. This is simply what is being reported. I believe much of what I claim came from the original letter. I have no certainty regarding any of it. I have no actual facts here. Yet I am more than ready to offer my opinion on the matter. Obviously, I might be totally wrong.

This brings us to questions regarding the press and whether we are willing to trust them. Do we trust the "fake news"? Do we trust the the people who report that Rod Rosenstein was seriously considering wearing a wire into the White House? Do we believe a newspaper that prints anonymous letters claiming there is a group in the White House that watch and insure that the President does not do anything too crazy?

Everyday we encounter such stories in the news. Maybe not every day, but often enough. Of course we also have to ponder if we are stopping at the supermarket tonight or if we can safely eat that Chinese from last week. Rarely, do we have sworn testimony and proper evidence. That is a luxury we are rarely willing to pay for or spend the time to acquire. we typically, for the most part, trust the press. We largely believe what they print or put up online.


We typically believe or give some credence to the weather man or woman. We probably should not but we do. We heed their warnings regarding gridlock alerts going into NYC. We do believe the TV news report regarding the election results. What of those commenting on the news - commentators? I typically do listen some of the analysis offered. Not all. I do pick and choose what I am listening to and who and what I am buying into. I do not want to dive into here how one decides such things, but it is another decision process, another item to decide.

Regarding the decisions on  how to deal with the media, there are those who claim they have no need of the news shows, or even newspapers. Perhaps a steady diet of CSPAN is sufficient. Do you, however, get an accurate representation of Washington on CSPAN? Perhaps it the case that to watch CSPAN requires a substantial prior understanding of our politics, our system, and of Washington, to make proper sense of their offerings. The claim that one does not require media outlets, their news, and analysis, that one can do it on one's own. It is a kind of rugged individualism. It reminds me of Thoreau and Walden. He was isolated in the woods, in his cabin, though not that far from town.

Again, my point here is that we have a limited data set. We know that the media is biased. We know that the information that they provide is incomplete. Sometimes it is simply wrong. That said, we work with what we have, and adjust our opinions and positions as things unfold.

Are we confirming an innocent man or a man of good character?

Most likely Kavanaugh will confirmed by Friday, although as I just saw there are now other allegations regarding his behavior! so maybe not. . . That said, if he is confirmed, he will be the Justice haunted by tales of perjury and sexual assault. We will then have one justice who has been accused of sexual harassment and one with a story sexual assault. True or not - it is the taint of such.

That is what these hearings are for to see if the nominee withers before the committee, the senate, the press, and the public.

By appointing such nominees we do no favor to the institution. Blinded by his anticipated rulings the Republicans seem to forget that at root these nominees must be indisputably good. The nominee's character must be unimpeachable. I am afraid that we are already unable to say that here. The fact that we are left with simply a "he said-she said" regarding what tonight now appears to be only an initial claim of sexual assault just makes it impossible to say with any certainty that he is a good man.

When discussing one's character, we do not want to consider a nominee that we believe is good. We do want certainty here. It is not, however, the certainty of his guilt or innocence regarding whether he sexually assaulted a young woman. We want certainty that he, the nominee, is of good moral character. And as he cannot prove this, as we now have this claim of sexual assault, granted unproven, it leaves us with doubts regarding his character. With that we cannot accept his nomination for the court. To proceed ahead and nominate such a man is to only weaken the institution of the Court. 

What of the woman who made the claim and the moment we are in?

It is routinely pointed out that the claim refers to an incident that happened over 30 years ago. That she remembers little aside from the details of the actual event. It is suggested that it perhaps a political stunt. Just look at the timing. Much of that is true, but keep in mind that rape and sexual assault are two of the most under-reported crimes out there.

Consider what has historically been done to women who have challenged men. Women who had little or no proof, no evidence, of such. How long did it take for all those women to finally catch up with Bill Cosby and Harvey Weinstein. Despite the various allegations, Bill Clinton still has not really been challenged. Fox News spent how much to deal with the last 20 years?

If you consider what criminologist have been saying for years regarding reports of rape statistically not happening as do other crimes. If you look at how long it took the victims who are part of the “me too” movement to come out, to share their stories.

Consider those who claimed they were assaulted by this President. Consider all those who have not been taken seriously, who in so many words were told that they were asking for such. Who were told that in light of the fact that they did not report it, they have no claim.

You consider what we know today about trauma and the recollection of such events. If you consider the challenges of human memory, it’s failings, what is and what is not remembered.

You consider her claim with these various details as a backdrop, you should pause at the very least before ruling hers a political stunt.

Again, considering the time we live in we really do not want a Justice with the stain of such accusations. We do not want a bench whose decisions can and will be challenged so easily.

Understand what I am saying. By putting such people on the bench you are providing the ammunition for why that institution is flawed, problematic.

This is why we have the FBI do such background checks, why we do these senate confirmation hearings. We want to know who it is we are putting in such a position.


It is not just a question of their positions regarding the law. It is who they are. We want to know in light of the institution they are about to become a part of. Do they merit such a place, such a pedestal.