SCOTUS Watch

[El Guapo]

I'm not suggesting certainty that he did it, but the issues with eyewitness memory (especially 30+ yr old eyewitness memory) apply to all involved. But in context, the moment was more important to some than to others.

Sure. But that's also how we come up with Roswell.

I'm just thinking that he's got a pattern of getting horribly wasted and being a dick. You'd think there would be more corroboration if he a serial rapist as opposed to just a dick.

Ehhhh, he's not really been accused of being a "serial rapist". Ford's allegation is assault (and that she feared being raped). Another allegation is the exposed penis allegation. The Avenatti accuser (Swetnick) has made some allegations of gang rape (I think), but I'm not sure that anyone's taking her too seriously just yet (in part because of Avenatti).

[noxiousdog]

Oh, and let's not forget that Ford was really drunk when it happened too.

This is incorrect, at least per her testimony. She testified that she only had one beer that night.

You may be confusing that with the "exposed penis" allegation of one of the other accusers, who said that Kavanaugh put his penis in her face. She has said that she was pretty drunk at the time.

See? Memory sucks

[El Guapo]

Oh, and let's not forget that Ford was really drunk when it happened too.

This is incorrect, at least per her testimony. She testified that she only had one beer that night.

You may be confusing that with the "exposed penis" allegation of one of the other accusers, who said that Kavanaugh put his penis in her face. She has said that she was pretty drunk at the time.

See? Memory sucks

It's also not generally ideal for a SCOTUS nominee when people are having trouble remembering which sexual abuse accuser is which.

[Carpet_pissr]

But in present day Trump America, it’s obviously not a big problem, either. More of a hiccup.

[El Guapo]

True.

It's also just super frustrating that we really know the important things that we need to know on Kavanaugh at this point. We're getting additional (significant) details every day, but the bottom line is that we're all waiting for Flake / Collins / Murkowski / Manchin etc. to decide whether they're going to nix the nomination or not.

[Isgrimnur]

They are also refusing to turn over the therapy notes to anyone else.

Would you want your therapy notes released? Because, at this stage, it's the same as posting them on a billboard outside the airport.

[noxiousdog]

They are also refusing to turn over the therapy notes to anyone else.

Would you want your therapy notes released? Because, at this stage, it's the same as posting them on a billboard outside the airport.

She already did it once to the WaPo. I would assume she could do it for the FBI. She's come this far.

[Paingod]

As has been said many times here and elsewhere. Even if he isn't guilty of sexually assaulting her, he is still not Supreme Court worthy. As evident from his hearing, he has no respect for the truth or law.

That was in my original statement. He's almost the exact opposite of what you'd want in a SC judge.

Completely agree. He's volatile, disrespectful, contemptuous of the process, and clearly leaning to one side with daggers out for the other.

Or, as the GOP would say "A perfect candidate"

[LordMortis]

I have little doubt she was assaulted. I have significant doubt she was assaulted by Kavenaugh mostly because there have not been a significant number of people that have been able to corroborate (none really) even though folks have been interviewed.

Washington Post

"The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.”"

They are also refusing to turn over the therapy notes to anyone else.

I have no answers but I hate to say I have doubt or even skepticism for Ford and yet I wouldn't profess Kavanaugh's guilt either. I am like the Senate in that regard. Where I diverge is OK, so this was 11th hour, so it's a hit job, move Kavanaugh through. If the investigation takes six months, it takes six months. If that's unacceptable, you either decide to throw more resources at it or you move to another candidate. You don't say "Fuck it."

And just because the notes don't use names, does that mean was her memory? I didn't read the details of the assault so I can't speak to how valuable or easy corroboration from the interviews means.

Personally, I don't want him as SCOTUS, in part, because that interview made him look like a conspirator. His rage and strain and emotional facades and threats and more were qualities I don't want in Justice at the highest levels in the land.

And when he's all up in it about Clinton conspiracies, what does he see in the mirror?

[El Guapo]

They are also refusing to turn over the therapy notes to anyone else.

Would you want your therapy notes released? Because, at this stage, it's the same as posting them on a billboard outside the airport.

She already did it once to the WaPo. I would assume she could do it for the FBI. She's come this far.

Have the FBI requested them? At least as of yesterday they hadn't reached out to Ford in connection with the renewed FBI investigation, despite Ford's attorneys trying to get in touch with them.

[LawBeefaroni]

Imagine an executive review committee being told that a candidate had been downloading pr0n at work. They search his company laptop for pr0n and come up empty, though the hard drive and browser cache have recently been cleaned. There, are however, rambling manifestos railing against the company and its mission, as well as outside emails promising to divulge privileged corporate information. But hey, no evidence of pr0n.

Half the committee disagrees and a review of the computer is called. One of the two HDDs is pulled and sent to a forensic lab to be searched for deleted jpg files only.

Promote the guy, I know him from the club!

[Isgrimnur]

It worked for the Brits.

[LordMortis]

Imagine an executive review committee being told that a candidate had been downloading pr0n at work. They search his company laptop for pr0n and come up empty, though the hard drive and browser cache have recently been cleaned. There, are however, rambling manifestos railing against the company and its mission, as well as outside emails promising to divulge privileged corporate information. But hey, no evidence of pr0n. Promote the guy, I know him from the club!

Did you pull your imagination from the What''s keeping Megabanks of jail thread?

[LawBeefaroni]

Imagine an executive review committee being told that a candidate had been downloading pr0n at work. They search his company laptop for pr0n and come up empty, though the hard drive and browser cache have recently been cleaned. There, are however, rambling manifestos railing against the company and its mission, as well as outside emails promising to divulge privileged corporate information. But hey, no evidence of pr0n. Promote the guy, I know him from the club!

Did you pull your imagination from the What''s keeping Megabanks of jail thread?

Very likely. This is a common dodge that may be appropriate in a strictly criminal court but is constantly and frustratingly used to protect malfeasance in the real world.

[malchior]

Imagine an executive review committee being told that a candidate had been downloading pr0n at work. They search his company laptop for pr0n and come up empty, though the hard drive and browser cache have recently been cleaned. There, are however, rambling manifestos railing against the company and its mission, as well as outside emails promising to divulge privileged corporate information. But hey, no evidence of pr0n. Promote the guy, I know him from the club!

Did you pull your imagination from the What''s keeping Megabanks of jail thread?

Very likely. This is a common dodge that may be appropriate in a strictly criminal court but is constantly and frustratingly used to protect malfeasance in the real world.

I have overseen IT investigations that generally followed these outlines. Though I more often than not find some evidence because people don't know how things work or what activities can be tracked and weird places evidence lurks in the windows registry.

[Pyperkub]

As has been said many times here and elsewhere. Even if he isn't guilty of sexually assaulting her, he is still not Supreme Court worthy. As evident from his hearing, he has no respect for the truth or law.

That was in my original statement. He's almost the exact opposite of what you'd want in a SC judge.

Completely agree. He's volatile, disrespectful, contemptuous of the process, and clearly leaning to one side with daggers out for the other.

Or, as the GOP would say "A perfect candidate"

Also in favor of working around the Constitution to justify Torture and Warrantless Wiretapping, among other things.

[GreenGoo]

I remember bullying events in high school (25 years ago), and I could tell you exactly who did it. And those were far less traumatic than a sexual assault.

Sure human memory is fallible, but it's not impossible. Particularly with signature events.

Ditto. There are several events that I would term "traumatic" that are so locked in memory that they glow.

This isn't a case of remembering what happened 35 years ago, it's a case of remembering what happened last night, then last week, then last month, then last year, over and over again.

The assault didn't happen 35 years ago, it is still "last night" for the victim.

I have no doubt Kavanaugh doesn't remember one drunken grope fest from 35 years ago.

I also have no doubt Ford remembers every horrifying moment of it.

People have tried to suggest it's a case of mistaken identity, but I remember exact who it was that assaulted me, and there have been several over the course of my life, and none of of them were as traumatic as what happened to Ford.

Do I think she has 100% recall? No. But focusing on that is just another way to undermine her testimony. 100% recall isn't necessary for her testimony to be true.

It's ok to disbelieve her.. I have no beef if you don't believe her. I'm not going to jump down anyone's throat for disagreeing with my conclusions, but I probably will never understand how anyone could watch both people talk about what happened/didn't happen and come out on Kavanaugh's side.

[GreenGoo]

For the record I have spoken to therapists on multiple occasions about specific events and have never used a person's name.

There is no doubt in my mind as to who those people were. I even know the address of one of them.

It's a grave.

This doesn't prove/disprove anything, but I would hope it would put to bed any doubt that centers on detailed Therapy account but no names. It's perfectly normal and appropriate.

[YellowKing]

While Kavanaugh is not on trial, this was essentially the format of a trial. You have an accused, you have a star witness, you have Senators acting as prosecution and defense with questions and cross-examinations.

In an actual criminal trial, eyewitness testimony would be extremely important and carry a huge amount of weight. Demeanor of the accused and of the witnesses would be enormous factors in the jury's decision. They would be assessing the credibility of the witnesses and the accused, and using that to help them make their decision.

It's disingenuous to say "well this wasn't technically a trial" and use that as an excuse to discount all the things that are hugely important factors in an actual trial. Witness testimony is absolutely important. Credibility is absolutely important. Demeanor is absolutely important.

[LawBeefaroni]

While Kavanaugh is not on trial, this was essentially the format of a trial. You have an accused, you have a star witness, you have Senators acting as prosecution and defense with questions and cross-examinations.

In an actual criminal trial, eyewitness testimony would be extremely important and carry a huge amount of weight. Demeanor of the accused and of the witnesses would be enormous factors in the jury's decision. They would be assessing the credibility of the witnesses and the accused, and using that to help them make their decision.

It's disingenuous to say "well this wasn't technically a trial" and use that as an excuse to discount all the things that are hugely important factors in an actual trial. Witness testimony is absolutely important. Credibility is absolutely important. Demeanor is absolutely important.

It was the rough outline of a trial. Other than that, it wasn't like a trial. Most significantly, there were time limits on any line of questioning. But also for a hundred other reasons.

[Isgrimnur]

A trial implies an impartial judge.

[LawBeefaroni]

You know, this may require a different thread but what would a similar fiasco looks like 30 years from now with Facebook and texts and timelines and Twitter to fall back on?

"Judge, can you explain this Instagram photo of you and Squi doing keg stands next to a seemingly passed out, naked girl..."

[YellowKing]

But was or was not the point of the hearing to listen to two opposing viewpoints and determine credibility? If so, then those same factors that are hugely important in a trial should be hugely important here and can't just be dismissed out of hand. Otherwise what was the point of this circus?

[LawBeefaroni]

Otherwise what was the point of this circus?

To give the vague appearance of some kind of trialy thing before rubber stamping the appointment.

[noxiousdog]

For the record I have spoken to therapists on multiple occasions about specific events and have never used a person's name.

There is no doubt in my mind as to who those people were. I even know the address of one of them.

It's a grave.

This doesn't prove/disprove anything, but I would hope it would put to bed any doubt that centers on detailed Therapy account but no names. It's perfectly normal and appropriate.

So is memory distortion. Even with, and in many cases because of trauma.

Just because we are empathetic to her experiences doesn't make them more or less objectively true.

[gameoverman]

I have little doubt she was assaulted. I have significant doubt she was assaulted by Kavenaugh mostly because there have not been a significant number of people that have been able to corroborate (none really) even though folks have been interviewed.

On this I'm using the same method of forming an opinion I used before, such as with the Hardwick situation. He said/she said comes down to credibility, and by paying attention to what each says and how they say it I'll get some kind of indication of who I can believe. I can believe she's telling the truth as she knows it. That's good enough to establish credibility, in so far as I do not believe she's being deceptive.

He came across badly. He didn't help his credibility. Actually, he destroyed it in my opinion. The stuff he says about his drinking and how drunk he ever got, that's obviously not being truthful, instead it's being self serving. Things like listing his female friends, that doesn't address the issue at hand but is also self serving and attempts to distract attention from the real issues.

So, for me, whether he did it or not is irrelevant in considering his nomination. This isn't a court trial. Do we really want a "I can't be a racist because i have black friends" type of person on the Supreme Court? Because that's what this guy is.

[GreenGoo]

Just because we are empathetic to her experiences doesn't make them more or less objectively true.

I find it hard to imagine being empathic for someone's experiences without believing they are true. We are never going to know if they are objectively true, we knew that before she even came forward but that's not required to be convinced he did it. As has been said many times, he's not on trial and the risk of being wrong does not take away his freedom. Strongly suspect Ford's account is true is enough for me.

Anyway, memory is all we've got in many cases, and it's often enough to put people on death row. I think it's enough in this case to put another significant nail in the coffin of Kavanaugh's SCOTUS dreams.

You're free to believe differently, of course.

[GreenGoo]

While Kavanaugh is not on trial, this was essentially the format of a trial.

So is the format of asking your kid if they took a cookie or not. A trial is a format for proving/disproving something. That doesn't mean that you need to meet the criminal definition of guilty every time someone tries to prove something.

I have yet to hear anyone claim it's not a trial so Ford's testimony is not valid.

edit: I think you're trying to refute Nox's memory concerns, but it's not exactly clear to me.

[GreenGoo]

It was the rough outline of a trial.

Exactly.

[Carpet_pissr]

And when he's all up in it about Clinton conspiracies, what does he see in the mirror?

A picture of him and Mr. Fed? Weird.

That dude is EVERYwhere these days.

[Enough]

This article in the Atlantic echoes my feelings nearly exactly.

Mr. Fed posted it on FB.

Great article. I agree with the author's conclusions, although not entirely with the route that he got there. But the passage I liked best is this one:

Over the weekend, I listened to a number of podcasts in which liberals mocked Kavanaugh as an entitled white male refusing to face accountability for what he had done. I find the tone of these discussions nauseating—undetained by the possibility of error. I, like Jeff Flake, am haunted by doubt, by the certainty of uncertainty and the consequent possibility of injustice. I spent a lot of time this weekend thinking about Oliver Cromwell’s famous letter to the Church of Scotland in which he implored, “I beseech you, in the bowels of Christ, think it possible you may be mistaken.” I also spent some time with Learned Hand’s similar maxim, “The spirit of liberty is the spirit which is not too sure that it is right.” We all need to think it possible that we may be mistaken; we all need to be not too sure that we are right.

Agree with the gist of the article but quoting Oliver Cromwell? It's a touch tone deaf. I guess he wasn't nauseated by the fact that liberals were mocking Kavavaugh as an entitled white male so much as the idea that someone would mock entitled white males.

I'm not entirely sure I see your point. His point is that a lot of people opposed to Kavanaugh are basically taking it as a given (or are irrationally certain) that the accusations are true. He agrees that the balance of the evidence (at least on the Ford allegations) are in Dr. Ford's favor, but he's cautioning that a little humility is in order, especially when the evidence is necessary old and spotty. And Oliver Cromwell (for better or worse) is a key person in establishing certain principles of liberty in British-American history, and as far as I know he doesn't have a sex abuse scandal.

The point is that Cromwell was an entitled as fuck white male. "Liberals are mocking this man as an entitled white male, it's nauseating! Here's a quote from a famous entitled white male to rein them in!"

It's a tone deaf selection. That's all.

It's just a little weird and anachronistic to throw a "entitled white male" label vs. liberals on a mid-17th century leader. Like, he kind of was, but like, no more or less than any other political leader of the times.

Then again, he did help write the "Solemn League and Covenant to Own the Libs", so there's that.

https://twitter.com/ElieNYC/status/1047559047984140288

[El Guapo]

This article in the Atlantic echoes my feelings nearly exactly.

Mr. Fed posted it on FB.

Great article. I agree with the author's conclusions, although not entirely with the route that he got there. But the passage I liked best is this one:

Over the weekend, I listened to a number of podcasts in which liberals mocked Kavanaugh as an entitled white male refusing to face accountability for what he had done. I find the tone of these discussions nauseating—undetained by the possibility of error. I, like Jeff Flake, am haunted by doubt, by the certainty of uncertainty and the consequent possibility of injustice. I spent a lot of time this weekend thinking about Oliver Cromwell’s famous letter to the Church of Scotland in which he implored, “I beseech you, in the bowels of Christ, think it possible you may be mistaken.” I also spent some time with Learned Hand’s similar maxim, “The spirit of liberty is the spirit which is not too sure that it is right.” We all need to think it possible that we may be mistaken; we all need to be not too sure that we are right.

Agree with the gist of the article but quoting Oliver Cromwell? It's a touch tone deaf. I guess he wasn't nauseated by the fact that liberals were mocking Kavavaugh as an entitled white male so much as the idea that someone would mock entitled white males.

I'm not entirely sure I see your point. His point is that a lot of people opposed to Kavanaugh are basically taking it as a given (or are irrationally certain) that the accusations are true. He agrees that the balance of the evidence (at least on the Ford allegations) are in Dr. Ford's favor, but he's cautioning that a little humility is in order, especially when the evidence is necessary old and spotty. And Oliver Cromwell (for better or worse) is a key person in establishing certain principles of liberty in British-American history, and as far as I know he doesn't have a sex abuse scandal.

The point is that Cromwell was an entitled as fuck white male. "Liberals are mocking this man as an entitled white male, it's nauseating! Here's a quote from a famous entitled white male to rein them in!"

It's a tone deaf selection. That's all.

It's just a little weird and anachronistic to throw a "entitled white male" label vs. liberals on a mid-17th century leader. Like, he kind of was, but like, no more or less than any other political leader of the times.

Then again, he did help write the "Solemn League and Covenant to Own the Libs", so there's that.

https://twitter.com/ElieNYC/status/1047559047984140288

That's fair, but I don't really care about the moral worth of Benjamin Wittes. I think it's reasonable to say that he erred in supporting Kavanaugh initially. He's doing the right thing now given more information. I don't know that there's much more to say.

[noxiousdog]

https://twitter.com/ElieNYC/status/1047559047984140288

I wonder how he feels about Keith Ellison.

I haven't heard about Alex Kozinski either, but that's a convincing argument.

[YellowKing]

edit: I think you're trying to refute Nox's memory concerns, but it's not exactly clear to me.

I've just seen people dismissing Ford out of hand because of similar reasoning (memory can't be reliable). My point was that despite that fallibility, we still give eyewitness testimony an enormous amount of weight in court cases. As well as witness demeanor, credibility, etc.

Put another way, if we were at a criminal trial and a woman was on the witness stand because she was raped 30 years ago, and she pointed to the defendant and said "That's the guy who raped me," would we as a juror simply roll our eyes and say, "She can't remember what happened 30 years ago." Of course not. I think because this is *not* a criminal trial, there is a tendency to sweep her accusations under the rug as if this is some kind of casual dinner conversation. I challenge anyone here to fly to DC, sit down in front of the entire Senate, and tell a giant lie without batting an eye. I mean what does she possibly have to gain from that? What kind of Oscar-caliber brass balls would you have to have to pull that off?

I'm not refuting noxiousdog specifically because he's absolutely right - memory is fallible and Ford's testimony in and of itself proves nothing. But we can still make judgments based on that testimony as well as the factors around it. Juries do it all the time. In a perfect world, Republican senators would take it into consideration as well.

[LawBeefaroni]

Put another way, if we were at a criminal trial and a woman was on the witness stand because she was raped 30 years ago, and she pointed to the defendant and said "That's the guy who raped me," would we as a juror simply roll our eyes and say, "She can't remember what happened 30 years ago." Of course not.

No, but the jury would be treated to a robust defense attempting to tear her testimony apart. In a criminal trial such a witness is anything but a slam dunk. Nothing at the hearings met the level of a criminal conviction for assault, IMO. But it doesn't have to. The hearings exposed Kavavaugh as unsuited for the job. That's the important thing.

[Enough]

https://twitter.com/seungminkim/status/ ... 9403317254

[Max Peck]

I'm (vaguely) aware that there are studies that conclude that eyewitness testimony can be unreliable, due to factors such as faulty memory. Do any of those studies specifically deal the case where the witness actually knows the perpetrator, as opposed to when the perpetrator is a stranger?

[TheMix]

I'm (vaguely) aware that there are studies that conclude that eyewitness testimony can be unreliable, due to factors such as faulty memory. Do any of those studies specifically deal the case where the witness actually knows the perpetrator, as opposed to when the perpetrator is a stranger?

When I hear "eyewitness" I think of someone that observed something, but wasn't a participant. I mean, I suppose a victim is still an eyewitness, it just sounded odd.

The point I wanted to make (which has been made several times already) is that there is likely a big difference between seeing something happen to someone else and having something happen to oneself. I'd be curious whether the subjects in those studies are in the former category or the latter.

[GreenGoo]

edit: I think you're trying to refute Nox's memory concerns, but it's not exactly clear to me.

I've just seen people dismissing Ford out of hand because of similar reasoning (memory can't be reliable). My point was that despite that fallibility, we still give eyewitness testimony an enormous amount of weight in court cases. As well as witness demeanor, credibility, etc.

Ah, fair enough. I basically repeat your point then.

I mean what does she possibly have to gain from that? What kind of Oscar-caliber brass balls would you have to have to pull that off?

I'm not a fan of using a lack of imagination on the part of the jury to prove/disprove anything. Everyone's reasons are their own, and if you can't think of one, it's because you're not the person involved.

I will agree with the brass balls comment however. It's a VERY intimidating and stressful setting. Just ask Kavanaugh, he's been complaining about being grilled since day one.

I'm not refuting noxiousdog specifically because he's absolutely right - memory is fallible and Ford's testimony in and of itself proves nothing. But we can still make judgments based on that testimony as well as the factors around it. Juries do it all the time. In a perfect world, Republican senators would take it into consideration as well.

Ditto this point as well, which I try to make again after you did because I didn't realize that's what you were saying.

[GreenGoo]

I should probably read up on Nox's comments to be sure, but I think there is a big difference between traumatic, and trauma. An event can stick in your mind without causing the kind of trauma that bends your mind into a pretzel. I guess what I'm saying is that traumatic experiences have a wide range of impacts on a person's psyche. Some, the result of which in some cases might be PTSD, can have lasting damage mentally, physically, emotionally. Others are just negative experiences that happened to us. How bad does an experience have to be to alter our memories? Does not getting the toy you wanted for Christmas cause memory altering trauma? What about failing a test? Threatened with physical harm? Physical harm?

I assume it's different for everyone and the specifics on an event affect everyone differently as well. What might be something I could shrug off might cause damage to someone else. And vice versa.

At what point can we be objectively sure that a person's memories are accurate enough to warrant belief? If the answer is never, then we, as humans, have a serious, serious problem, because we rely on the accuracy of our memories all the time.

Data corruption of significant magnitude renders the data useless.