Letter 154-B: On the Cultural Norms in a Time of Change

"Knowledge alone is not enough. It must be leavened by magnanimity before it becomes wisdom."

-- Governor and U.N. Ambassador Adlai Stevenson

"Judge not, that ye be not judged. / For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. / And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?"

--Saint Matthew (Gospel of Matthew; King James Version; 7 : 1-3)

BLUF(Bottom-line, Up-front).  There is no doubt in my mind that Judge Kavanaugh committed the misdeeds alleged by Dr Christine Blasey-Ford when he was seventeen. That misdeed, in itself, should not disqualify him for future offices of power and prestige. That misdeed unaddressed and unacknowledged should. As discussed recently on Facebook, I can in no way judge Brett Kavanaugh for what he did; I can, however, note mournfully what he has simply failed to do.

My view of why Judge Kavanaugh should not be confirmed. Click here.

Neurotic Back-story.  In recent comments, I have opened up a little about the same world in which Brett Kavanaugh existed. No, it was not the Choate School; had I done what Judge Kavanaugh did, even while on vacation or off-campus, and the school had found out, I suspect I would have graduated from another place. This world, to which I refer in this essay, existed in college, during which I harmed at least one and as many as three women emotionally. Subsequently, I made my amends and finally, after I had gone too far, ceased the enabling of those behaviors.

Yes, I still feel the pain of knowing that I can not undo those events; no, the women involved had no part in them, nor were their feelings unfounded. Now the previous making of amends and then setting right my life going-forward confers no special status upon me. Not doing so would imprint a special status of an altogether different order. To make sure people understand that I am not minimizing my own behavior, I can assure the reader that my transgressions – and they were transgressions – did not reach the magnitude of Judge Kavanaugh. Enough said.

Welcome to my old world. At my college, all male when I went there, one heard about women – from ‘girls schools’ nearby – ‘pulling train’ perhaps once or twice a semester, perhaps as often as once a month. Since I never participated in these activities and since those who did never spoke about them to me, I can not be exact about what happened. (Truthfully, I was never aware of who worked these trains, though some women's names were mentioned, to be quickly forgotten by me.) First of all, there were two types of pulling train about which I heard. One was ‘pulling train’, which was one woman being penetrated by multiple men in rapid succession. The second was ‘pulling a blow-train’ in which a woman performed fellatio on multiple men, again in rapid succession.

Even at the time they occurred, I felt these incidents were tantamount to gang rapes, as one of the women who came forward in the case of Judge Kavanaugh has described. My suspicion was then, and remains today, that such ‘trains’ started out with a young woman, quite drunk and likely in a black-out, going upstairs with one man, thinking she would sleep with him, as her sole partner. Et voilà! Several buddies showed up for the fun.

Whether these women were drugged, I did not know and never heard gossip to that effect. There was little, if any, consent; even then, I knew deep down inside that a gal's being drunk and giving in was not consent, not really. There was at least one party, likely more, which I attended during which one of these incidents occurred upstairs and I did not find out about it until the grape-vine caught up with me two to three days later.

(As an aside, this issue did not become important to me until my sister started at the sister college; then, it occurred to me, that the names of girls who were mentioned could possibly include hers someday. Very early on, I was relieved to find that my sister did the three things women in that setting needed to do: limit the drinking when at a party alone or with one or two other women; party only as part of a pack of women looking out for each other; and, go to the marquee state university down the road that was co-ed where men would remain accountable for such behavior.)

So the actions described by these three women about Judge Kavanaugh are parallel to those I saw in college, including ‘whipping it out’ to ‘blow out a girl'. One of my frat-rush acquaintances and I, with one or two others, were teasing back and forth with a gal at one of the nearby women’s colleges, when he – a product of a fine New England prep school – whipped out his private member. Yes, I was drunk and standing behind him; I did not see the actual penis. What I did see was a woman’s facial expression that I shall never forget. This beautiful young lady had a look of simultaneous disgust and fear on her face; it was the visible reaction of sexual violation, albeit at a low level.

Senator Durbin (D-IL) on the new cultural norms inevitably ensuing from American women attaining power over the last forty years.Click here.

Another early acquaintance had been the summer beau of a friend of mine in my hometown, a woman reputed to be ‘loose’. Who knows if she really was; all I know factually is that she was about as interested into jumping into anything with me as she was jumping into a live volcano. Yet, I had known this gal and her family for many years. Whatever her teenage habits, I knew that she came from good people. So, I introduced myself to this fellow, mentioning that I knew this gal. His response? “Yeah, I know her. And does she love to fuck.” I was so angry, though I too was drunk, that my buds had to shoo me away before I got into a fist-fight that I would have lost for sure.

In both those examples, within three weeks of starting college, all the other adjacent guys thought it was hilarious. In my case, I faked it; maybe others did, too. Later on, after I quit my drinking, I became friendly with many women, just as Bret Kavanaugh has. I got to know these women, largely by hanging out with my sister and in a fraternity where most men showed unerring respect for women. Some of the stories of what these women, who came to trust me, had endured horrified me. For example, one jilted boyfriend at my college sent one of these women – one who possessed the three-Bs: beauty, brains, breeding – a box of what looked like candy only to be human feces.

Again, I can guarantee the reader that, on the sending end of that scare-package, a bunch of guys thought it was hilarious.So, did Brett Kavanaugh exist in this world? One can bet his or her hiney he did. Did he do what Dr Blasey-Ford asserted? Admittedly, one can not be certain. In a world of subjective probabilities, however, I would assign at least a 90% likelihood that he did do these things. 

Judgement. Again, I must emphasize that I can not condemn this man for misdeeds while intoxicated as I committed the same transgressions, if not in degree at least in kind. But here is where my sympathy ends. Judge Kavanaugh, much as Justice Clarence Thomas did in 1991, showed little or no remorse for his behavior, at least publicly. Instead both tried to blame others through phrases like “a leftist political hit” or “high-tech lynching”.

Playing the race or poor-me political card was trite tripe in 1991 as it is again in 2018. As I do for Judge Kavanaugh today, I felt sympathy for Justice Thomas back then. The latter’s misbehavior appeared to have occurred at a low-point in his life when feelings and loneliness got the better of him. One can not speak for others, but neither of these nominees genuinely acknowledged the suffering of Ms Hill or Dr Blasey-Ford, let alone several other maleficiaries of their attention.

Nevertheless, blaming people by accusing others of racist or left-wing conspiracies, evaporated that sympathy fast in both cases. What makes my blood boil in these two cases is the resort to blaming the victims relied upon by Justice Thomas and Judge Kavanaugh. Neither Dr Christine Blasey-Ford nor Ms Anita Hill wanted to go public or testify; they are to be credited for doing both. 

One can not speak for others, but I can say that I am not sure I would have had the courage to do that. Their reception? Anita Hill was in love with Clarence Thomas and that love was unrequited…implication: she’s a scorned bitch striking back at an innocent man with an earthy sense of humor.

Senator Cruz (D-TX) with the best defense of Judge Kavanaugh. Click here.

Dr Blasey-Ford’s treatment has been worse. Judge Kavanaugh testified that he was sure “something terrible” happened to her but that she got it wrong in identifying him, implying that she was unstable or deranged by post-traumatic stress disorder. That begs the question: had someone – with no prior exposure to this fracas and no frame of reference – watched the manner of the two witnesses at the hearing on 27th September 2018, which person would that neutral onlooker deem the more stable? 

That answer is so self-evident as to make the question itself a rhetorical one.

Both lines, of Judge Kavanaugh and Justice Thomas, smack of bullshit; I do not like to use such argots in my pretentious and tendentious essays, outside of the direct quotations of others. Yet unfettered prose can emphasize the point. In these cases, the bullshit is that of blaming the victim. That excuse did not wash in 1991, nor should it in 2018. What remains most sobering, to me at least, is how little any Republicans contested this notion in 2018; perhaps less so than in 1991.

Though I am no fan of the Clintons, I feel badly [NOT] for Clarence Thomas for he didn’t have President and Secretary / Senator Clinton to hang his troubles on back then, as 'Brat' Kavanaugh did so loudly and pugnaciously now. Several Republican Senators are to be credited with acknowledging the power of Dr Blasey-Ford's testimony, only to swing into asserting that the witness's trauma had led her into a case of mistaken identity.

Each time I heard that, I had to ask myself, "What if your wife or daughter told you this story? Would you believe her? Or would you dismiss her recollection as compelling but somehow invalid?"

Senator Whitehouse (D-RI) picks apart Judge Kavanaugh's case. Click here.

Why it matters now as it did in 1991. Now, I suspect anyone patient enough to have read this far may have the question: ¿so, why does this matter? Good question. Constitutional law is a cerebral exercise and past misdeeds, especially those of long ago, don’t really factor into that exercise. Both Judge Kavanaugh and Justice Thomas are brilliant legal minds and that is all that really matters. Their private lives – recent or distant – are independent of their crafted thinking and written opinions.

Right?

Well, not quite.

What a Supreme Court Justice should be. The Supreme Court functions as the supreme judicial body; as such, its lifetime members function with limited transparency, less accountability and maximum latitude. That makes the Supreme Court, at least informally, a Council of Elders and not an array of talking heads. That additional burden requires men and women who have more than good minds. They must have wisdom, too.

Wisdom requires empathy, an ability to have, at least, some idea of how the other feels, no matter how ‘other’ that other really is. Empathy requires moral agency, knowing what the right thing is and when to atone for crossing that invisible line of ethics when one knows better. That self-destruction – that ‘dark night of the soul' – imposed by radical integrity makes radical empathy possible. That ego-deflation requires setting aside ‘might’ in favor of the ‘right’, as one can see the right (as an archetypal Republican once said).

Such an inward process is a harrowing one. Ultimately, if one believes thinkers over the last three or four millennia, that harrowing time becomes a redemptive one. One earns that redemption through direct amends and opening him-or-herself to change to set things right. As a case in point on the Supreme Court, I submit seven Justices who showed this wisdom accumulated not only through great achievements but through a discernible and unceasing growth of character: two liberal, two moderate and three conservatives.

Senator Jeff Flake (R-AZ) proposes a week's delay for an F.B.I. follow-through investigation. Click here.

Those ‘fluid’ jurists were Justice Hugo Black, Justice Felix Frankfurter, Justice Sandra Day O'Connor, Justice David Souter, Justice John Paul Stevens, Justice Byron White and Chief Justice Earl Warren. Judge Kavanaugh seems yet to do just that: own up to his past and make amends publicly. His subsequent life has, by all accounts, set those actions right. He is a good man. Humility would make him a great Justice, as humility – true and deep humility – is an ingredient of greatness for a great many of history's greatest.

FOR THOSE WHO CAN NOT VISUALIZE WHAT A SEXUAL ASSAULT WOULD FEEL LIKE, THE BEST DESCRIPTION I HAVE ENCOUNTERED WAS THIS RECALL BY SYLVIA PLATH, IF THE BELL JAR WAS COMPLETELY AUTOBIOGRAPHICAL, TEN YEARS AFTER THE FACT THAT OCCURRED ON A NIGHT DURING WHICH SHE WAS AT LEAST TIPSY. If one wants to go directly to the incident and skip the back-story, scroll down to the words, "Marco dashed his cigar underfoot."

------ Excerpt from The Bell Jar (Harper & Row, 1971) -----

Doreen knocked on the green door with the gold knob.

Scuffing and a man's laugh, cut short, sounded from inside. Then a tall boy in shirtsleeves and a blond crewcut inched the door open and peered out.

 "Baby!" he roared.

Doreen disappeared in his arms. I thought it must be the person Lenny knew. I stood quietly in the doorway in my black sheath and my black stole with the fringe, yellower than ever, but expecting less.

"I am an observer," I told myself, as I watched Doreen being handed into the room by the blond boy to another man, who was also tall, but dark, with slightly longer hair. This man was wearing an immaculate white suit, a pale blue shirt and a yellow satin tie with a bright stickpin.

I couldn't take my eyes off that stickpin.

A great white light seemed to shoot out of it, illuminating the room. Then the light withdrew into itself, leaving a dewdrop on a field of gold.

I put one foot in front of the other.

"That's a diamond," somebody said, and a lot of people burst out laughing.

My nail tapped a glassy facet.

"Her first diamond."

"Give it to her, Marco."

Marco bowed and deposited the stickpin in my palm.

It dazzled and danced with light like a heavenly ice cube. I slipped it quickly into my imitation jet bead evening bag and looked around. The faces were empty as plates, and nobody seemed to be breathing.

"Fortunately," a dry, hard hand encircled my upper arm, "I am escorting the lady for the rest of the evening. Perhaps," the spark in Marco's eyes extinguished, and they went black, "I shall perform some small service. . ."

Somebody laughed.

". . .worthy of a diamond."

The hand round my arm tightened.

"Ouch!"

Marco removed his hand. I looked down at my arm. A thumbprint purpled into view. Marco watched me. Then he pointed to the underside of my arm. "Look there."

I looked, and saw four, faint matching prints.  "You see, I am quite serious."

Marco's small, flickering smile reminded me of a snake I'd teased in the Bronx Zoo. When I tapped my finger on the stout cage glass the snake had opened its clockwork jaws and seemed to smile. Then it struck and struck and struck at the invisible pane till I moved off.

I had never met a woman-hater before.

I could tell Marco was a woman-hater, because in spite of all the models and TV starlets in the room that night he paid attention to nobody but me. Not out of kindness or even curiosity, but because I'd happened to be dealt to him, like a playing card in a pack of identical cards.

A man in the country club band stepped up to the mike and started shaking those seedpod rattles that mean South American music.

Marco reached for my hand, but I hung on to my fourth daiquiri and stayed put.

I'd never had a daiquiri before. The reason I had a daiquiri was because Marco ordered it for me, and I felt so grateful he hadn't asked what sort of drink I wanted that I didn't say a word, I just drank one daiquiri after another.

Marco looked at me.

"No," I said.

"What do you mean, no?"

"I can't dance to that kind of music."

"Don't be stupid."

"I want to sit here and finish my drink."

Marco bent toward me with a tight smile, and in one swoop my drink took wing and landed in a potted palm. Then Marco gripped my hand in such a way I had to choose between following him on to the floor or having my arm torn off.

"It's a tango." Marco maneuvered me out among the dancers. "I love tangos."

"I can't dance."

"You don't have to dance. I'll do the dancing."

Marco hooked an arm around my waist and jerked me up against his dazzling white suit. Then he said,

"Pretend you are drowning."

I shut my eyes, and the music broke over me like a rainstorm. Marco's leg slid forward against mine and my leg slid back and I seemed to be riveted to him, limb for limb, moving as he moved, without any will or knowledge of my own, and after a while I thought, "It doesn't take two to dance, it only takes one," and I let myself blow and bend like a tree in the wind.

"What did I tell you?" Marco's breath scorched my ear. "You're a perfectly respectable dancer."

I began to see why woman-haters could make such fools of women. Womanhaters were like gods: invulnerable and chock-full of power. They descended, and then they disappeared. You could never catch one.

After the South American music there was an interval. Marco led me through the French doors into the garden. Lights and voices spilled from the ballroom window, but a few yards beyond the darkness drew up its barricade and sealed them off. In the infinitesimal glow of the stars, the trees and flowers were strewing their cool odors. There was no moon.

The box hedges shut behind us. A deserted golf course stretched away toward a few hilly clumps of trees, and I felt the whole desolate familiarity of the scene -- the country club and the dance and the lawn with its single cricket.

I didn't know where I was, but it was somewhere in the wealthy suburbs of New York.

Marco produced a slim cigar and a silver lighter in the shape of a bullet. He set the cigar between his lips and bent over the small flare. His face, with its exaggerated shadows and planes of light, looked alien and pained, like a refugee's.

I watched him.

"Who are you in love with?" I said then.

For a minute Marco didn't say anything, he simply opened his mouth and breathed out a blue, vaporous ring.

"Perfect!" he laughed.

The ring widened and blurred, ghost-pale on the dark air.

Then he said, "I am in love with my cousin."

I felt no surprise. "Why don't you marry her?"

"Impossible."

"Why?"

Marco shrugged. "She's my first cousin. She's going to be a nun."

"Is she beautiful?"

"There's no one to touch her."

"Does she know you love her?"

"Of course."

I paused. The obstacle seemed unreal to me. "If you love her," I said, "you'll love somebody else someday."

Marco dashed his cigar underfoot.

The ground soared and struck me with a soft shock. Mud squirmed through my fingers. Marco waited until I half rose. Then he put both hands on my shoulders and flung me back.

"My dress. . ."

"Your dress!" The mud oozed and adjusted itself to my shoulder blades. "Your dress!" Marco's face lowered cloudily over mine. A few drops of spit struck my lips.

"Your dress is black and the dirt is black as well."

Then he threw himself face down as if he would grind his body through me and into the mud.

"It's happening," I thought. "It's happening. If I just lie here and do nothing it will happen."

Marco set his teeth to the strap at my shoulder and tore my sheath to the waist. I saw the glimmer of bare skin, like a pale veil separating two bloody-minded adversaries.

"Slut!"

The words hissed by my ear.

"Slut!"

The dust cleared, and I had a full view of the battle.

I began to writhe and bite.

Marco weighed me to the earth.

"Slut!"

I gouged at his leg with the sharp heel of my shoe. He turned, fumbling for the hurt.

Then I fisted my fingers together and smashed them at his nose. It was like hitting the steel plate of a battleship. Marco sat up. I began to cry.

Marco pulled out a white handkerchief and dabbed his nose. Blackness, like ink, spread over the pale cloth.

I sucked at my salty knuckles.

"I want Doreen."

Marco stared off across the golf links.

"I want Doreen. I want to go home."

"Sluts, all sluts." Marco seemed to be talking to himself. "Yes or no, it is all the same."

I poked Marco's shoulder. "Where's Doreen?"

Marco snorted. "Go to the parking lot. Look in the backs of all the cars."

Then he spun around.

"My diamond."

I got up and retrieved my stole from the darkness. I started to walk off. Marco sprang to his feet and blocked my path. Then, deliberately, he wiped his finger under his bloody nose and with two strokes stained my cheeks. "I have earned my diamond with this blood. Give it to me."

"I don't know where it is."

Now I knew perfectly well that the diamond was in my evening bag and that when Marco knocked me down my evening bag had soared, like a night bird, into the enveloping darkness. I began to think I would lead him away and then return on my own and hunt for it.

I had no idea what a diamond that size would buy, but whatever it was, I knew it would be a lot. Marco took my shoulders in both hands.

"Tell me," he said, giving each word equal emphasis. "Tell me, or I'll break your neck." Suddenly I didn't care.

"It's in my imitation jet bead evening bag," I said. "Somewhere in the muck."

I left Marco on his hands and knees, scrabbling in the darkness for another, smaller darkness that hid the light of his diamond from his furious eyes.

Doreen was not in the ballroom nor in the parking lot. I kept to the fringe of the shadows so nobody would notice the grass plastered to my dress and shoes, and with my black stole I covered my shoulders and bare breasts.

Luckily for me, the dance was nearly over, and groups of people were leaving and coming out to the parked cars. I asked at one car after another until finally I found a car that had room and would drop me in the middle of Manhattan.

At that vague hour between dark and dawn, the sunroof of the Amazon was deserted.

Quiet as a burglar in my cornflower-sprigged bathrobe, I crept to the edge of the parapet. The parapet reached almost to my shoulders, so I dragged a folding chair from the stack against the wall, opened it, and climbed onto the precarious seat. A stiff breeze lifted the hair from my head. At my feet, the city doused its lights in sleep, its buildings blackened, as if for a funeral.

It was my last night.

I grasped the bundle I carried and pulled at a pale tail. A strapless elasticized slip which, in the course of wear, had lost its elasticity, slumped into my hand. I waved it, like a flag of truce, once, twice. . . The breeze caught it, and I let go.

A white flake floated out into the night, and began its slow descent. I wondered on what street or rooftop it would come to rest. I tugged at the bundle again.

The wind made an effort, but failed, and a batlike shadow sank toward the roof garden of the penthouse opposite.

Piece by piece, I fed my wardrobe to the night wind, and flutteringly, like a loved one's ashes, the gray scraps were ferried off, to settle here, there, exactly where I would never know, in the dark heart of New York.

154-A: The Kavanaugh Nomination: when enough is enough

"The more people rationalize cheating, the more it becomes a culture of dishonesty. And that can become a vicious, downward cycle. Because suddenly, if everyone else is cheating, you feel a need to cheat, too."  

--Stephen Covey (from BrainyQuote)

Update 24th September 2018: I did not see this essay featured by NBC news at the time of the hearings of Judge Kavanaugh and the writing of this (my) essay as well as its predecessor. It fleshes out the uneasiness I harboured about Judge Kavanaugh's ambition and desire to please superiors interfering with his moral agency.

David Brock on the political trajectory of Judge Kavanaugh.

BLUF (bottom-line, up front)

Likeable as he is and virtuous as his public life and demeanor are, Judge Kavanaugh has failed to earn his seat on the Supreme Court. A lifetime appointment to a position of almost unchecked ethical autonomy makes his confirmation too risky for me.

John W. Dean III on a history of Republican misrepresentations for the Supreme Court.

REASON I: Suppression of Transparency
There is an old saying: "Where there's smoke, there's fire." We have seen limited smoke, perhaps not enough for there to be a fire. What concerns me is why there is so little smoke. Simply said, the oxygen supply has been cut off, meaning that there has been far too little transparency in this hearing. Proper accountability -- always a thorn in the flesh for virtuous and venal people or conservatives, liberals and pragmatists alike -- is the bedrock of any democracy; transparency is its life-blood.

THE ATLANTIC article first questioning the integrity of Judge Kavanaugh's representation and nomination.

REASON II: Fear of Attack and National Security Only Go so Far

Almost all of us were not in the White House on the 12th of September 2001. People who were should be given the benefit of the doubt for subsequent actions in view of the extraordinary, even existential pressures to which men and women were subjected after 9-11. Yet Judge Kavanaugh's assertion of everyday being September 12th has a time span of four or five years in his case. That is a lot of September Twelfths to swallow. For example, a number of people -- including Attorney General Ashcroft, Deputy A.G. James Comey and, most publicly, the late Senator McCain (R-AZ) --vigorously opposed these policies of torture during the time that Judge Kavanaugh served in the White House.

Judge Kavanaugh ducks a lay-up from Senator Klobuchar (D-MN).

REASON III: Courage is Neither Subjective nor Optional
Nevertheless, if the actions taken were proper at the time, why hide them so arduously through prevarication at best, perjury at worst? Why not be up-front and either defend the policies; admit to making a mistake in retrospect; or, admit to unclear thinking imposed by post-traumatic stress disorder. After 9-11, P.T.S.D. likely tafflicted many people working in the White House and Pentagon at the time. Instead, Judge Kavanaugh's evasiveness indicates, to me at least, that deep-down inside he and other officials knew what they were doing was wrong.

Time to pierce the veil; why transparency still counts.

REASON IV: Partnering Propriety with Unwillingness

Judge Kavanaugh has wiggled out of far too many answers due to a stated desire of not opining on possible cases or the need to protect the independence of the judiciary. Sadly, through misuse, he has hackneyed these principles into excuses. The evasiveness has crossed that threshold of stagnant reasoning by turning these stock answers into non-sequiturs to questions that have little to do with judicial autonomy or possible / pending cases.

Senator Booker (D-NJ) on why prevarication matters and on his case for recusal.

  

REASON V: Everybody Else Doesn't "Just Do It"

The Judge's practiced monotone comes across as choking off accountability. The difficulty here is that too many Republicans apparently view legitimate questions posed by Democrats as 'obstacles' to be avoided and surmounted rather than anxieties to be addressed. This type of obfuscation and deceit-by-deflection has not been practiced, to the best of my knowledge, with the four Justices to the Supreme Court nominated by Presidents Clinton and Obama (i.e., Justices Ginsberg, Kagan, Sotomayor, and Breyer). This spirit of propriety has also applied to several recent G.O.P. Justices (e.g., that I know of, Justices O'Connor, Kennedy, Souter and Stevens).

SALON article investigating Judge Kavanaugh's history and the history of prevarication by other G.O.P. nominees to the Supreme Court.

REASON VI: Moral Agency and Ethical Autonomy

As I stated in the original essay supportive of Judge Kavanaugh's confirmation -- I know, I am being preposterously self-important here -- the question comes down to moral agency and ethical autonomy. Judge Kavanaugh's performance lays his moral agency (at least outside of church and civic life) -- into plain doubt. The bitterest irony remains that one reason Robert Bork's nomination went down in flames was that he did take ownership of his controversial positions, if I recall correctly after so many years. From that experience, several subsequent G.O.P. nominees seem to have inferred that honesty is not the best policy nor transparency the best manner.

The human stakes here -- and what of our children?

From some of those 'damned millennials' at this hearing:

PART-1: gun violence and African Americans;

PART-2: pre-existing conditions; as well as,

PART-3: clean minds need clean air.

CONCLUSION

Nice man. By a great many accounts, a good man. But one who takes to heart that 'all is fair in love and war . . . .' There are other conservative jurists who are more forthright and exercise the moral courage to take ownership of their views and past actions. A lifetime appointment to a position of almost unchecked ethical autonomy makes Judge Kavanaugh's confirmation too risky for me.

Letter 154: Judge Kavanaugh and Transparency

"More haste, less speed."
John Heywood, 1546.

"Trust but verify."
Russian proverb used by President Reagan in 1987.

UPDATE: 7th Sepetmber 2018: I tightened this letter home since it had been a comment on Facebook pasted into this space, with section headings and links added as well as incidental changes made. It does not change what I was writing four days ago. So it is right or wrong in view of subsequent testimony and events. 

What it does do is flesh out allusions to past events -- principally the 'Saturday Night Massacre' of 1973 and the 'Starr Report' and its recommendations of 1998 -- for those many who are not familiar with these events due to age or geography. For a particularly thorough analysis of the issues of transparency with respect to this Supreme Court nomination, please refer to the Slate article linked below, between the fifth and sixth paragraphs.

INTRODUCTION
The introduction by former SecState Condoleezza Rice of Judge Kavanaugh at tomorrow's Judiciary Committee hearing is a big plus for the prospective Supreme Court Justice. Judge Kavanaugh is more than adequately qualified to serve on the Supreme Court. Current red herrings about a Judge for whom he clerked or his Catholic background say nothing about him or his jurisprudence. The Democrats seem shrill and unreasonable. Their arguments over transparency, however, are timely.

IF IT WALKS LIKE A BORK . . .Let's go back twenty-one years to Judge Bork. So why did Bork get Borked for his seat on the Supreme Court? At first, I attributed it to his being a goofy looking fellow. But, even then, I knew that few people are as superficial as I. What seemed obvious to me at the time was that the Democratic majority in the Senate had over-reached the proper limits of its institutional authority of advice and consent. That constitutional power relates to evaluating a nominee’s fitness for the office, not the quality of that person’s politics. While I disagreed with his politics and judicial philosophy, I found Judge Bork's answers and testimony to embody sound, often brilliant reasoning. 

https://dlj.law.duke.edu/2015/05/advice-and-consent-in-the-appointments-clause-from-another-historical-perspective/ 

Only a few years later did I find out that Judge Bork had been the hatchet-man of the 1973 Saturday Night Massacre. To recall that incident, President Nixon wanted to fire Special Prosecutor Archibald Cox. Attorney General Richardson refused to do so and resigned. His deputy, William Ruckelshaus also refused to fire Special Prosecutor Cox and was himself fired. Finally, the Solicitor General carried out the President's wishes, acting as the interim Attorney General. That Solicitor General was Robert Bork. Some people believed that the Solicitor General may have been given career incentives to do to be the hatchet-man. That was a sore point for a lot of Democrats.

https://www.facebook.com/NBCNews/videos/10155996882128689/  

While I still felt sympathy for Judge Bork, I understood the visceral reaction among his opponents in 1987. Now, fast forward a score and one years to Judge Kavanaugh and the transparency issue, in which documents are being withheld that may bear on the Judge's actions and judicial temperament. This arguable suppression of documents by assertion of Executive Privilege for many -- and designation of 'Committee Confidential' of others -- has emerged as more urgent than Judge Kavanaugh’s aggressive disclosure and legal tactics vis à vis President Clinton's testimony to Independent Counsel Starr with respect to perjury involving sex with Monica Lewinsky. Judge Kavanaugh assumed the lead in authoring the case for impeachment, obviously another sore point for partisan Democrats. 

https://www.ted.com/talks/monica_lewinsky_the_price_of_shame 

Personally, that aggressive tactic toward President Clinton, both in questioning the President and then releasing that testimony to the inter-net raises troubling questions. For clarification, I came to believe that President Clinton should have been impeached and should have been removed from office. Nevertheless, I remember breaking down and crying when I saw that testimony on national television; it was unnecessary and a degradation of the office. So, those actions could be enough to question the qualifications of Judge Kavanaugh's elevation to the Supreme Court. The Supreme Court is not merely a judicial committee; it also acts as our Council of Elders. The acute suffering that Judge Kavanaugh's discretionary actions helped impose upon Ms Lewinsky makes me question his wisdom, a quality that must encompass magnanimity. 

https://slate.com/news-and-politics/2018/08/brett-kavanaughs-bush-documents-show-how-much-power-hed-grant-donald-trump.html  

Though a partisan sore point, the Democrats really would rather not go there for obvious political reasons and since public tributes to, and the behavior of, Judge Kavanaugh demonstrate his exemplary personal life and public virtue. Now there is a second sore point, likely reflective of a more serious contention of accountability, the Democrats call for more disclosure, arguing that only a small percentage of the documents requested have been turned over. The Republicans claim that Judge Kavanaugh has turned over a far higher number of pages than other nominees historically. 

MANY PAGES, MANY RAGES

Both assertions are accurate but fail to answer each other and utterly miss the point being raised. The size of the hole matters less than its timing.  The part of Judge Kavanaugh's record resolutely withheld relates to those years when he was a White House Counsel and possibly involved in the policies enabling torture and kidnapping of terror suspects after the attacks on New York City and the Pentagon on the 11th of September 2001. Understandably, this is a sore point with the opponents and later critics of Operation Iraqi Freedom. 

https://www.c-span.org/video/?c4746754/senator-mccain-president-bush  

Republicans may argue that, at least, 15% of the Senate Democrats confirmed, as C.I.A. Director, Gina Haspel, who was more intimately involved in these odious policies (that stained the legacy of one of my favorite Presidents). Fortunately, in the case of torture, the late Senator McCain, Attorney General Ashcroft, Deputy A.G. Comey and others raised holy Hell eventually to mitigate and end the policies. The rationale for Ms Haspel’s confirmation was that she simply followed Administration policy, as determined by the civilian Commander in Chief. By logical extension, so did Judge Kavanaugh. 

https://www.theguardian.com/us-news/2018/may/17/gina-haspel-cia-director-senate-vote  

The question here is not simply a repeat of the Nuremberg defense, but one that works. The dilemma underlying these grey-zone decisions of the past pits moral agency against ethical autonomy. Simply said, the current Director of the C.I.A. arguably has a shakey moral agency but, nevertheless, she enjoys little ethical autonomy. The same can be asserted of Judge Kavanaugh’s moral agency, should his actions fifteen years ago bear out an active enabling of policies on torture.  (For me, I failed to question these policies when I knew they were in place, viewing them as regrettable necessities of war; I was wrong, terribly wrong. Citizens, even insignificant ones like me, are accountable too if not publicly, then at least to their own consciences.) 

https://medium.com/@jackkrupansky/what-are-autonomy-and-agency-1928813394c7  

Both the Judge and the Über-spook are fine people; nonetheless, their moral agency has been open to question in the past. Hey, nobody's perfect. The question for me -- and why the Democrats' demands should be met -- centers on ethical autonomy. Director Haspel has at least two superiors above her in the Executive Branch: the President and the Director of National Intelligence. So, theoretically at least, she has limited latitude in her decision and actions. The Vice President can likely pull rank, too, but would almost never be in a position to do so. 

WHO'S IN THE DRIVER'S SEAT AND WHOSE SEAT IS IT?

Judge Kavanaugh's autonomy on the Supreme Court, however, will be far more open-ended, removing institutional accountability. Outside of an impeachment and removal by Congress -- unlikely in this case in view of this man's demonstrably fine character -- a Supreme Court Justice may answer to no one. So the issue of past moral agency becomes important, if not determinant. And accountability for past behavior must occur before Judge Kavanaugh ascends to the highest bench. 

http://www.latimes.com/politics/la-na-pol-democrats-documents-kavanaugh-20180824-story.html#  

The Republicans ought to release the documents in question since not doing so lends credence to the implicit accusation that they are seeking to protect Judge Kavanaugh from being held to full account for his role in the policies of 'enhanced interrogation'. For my part, were the nominee proven to be intimately involved, I would still view him as qualified. For me, at least, it is hard to imagine the pressures on the executive branch during the harrowing days following 9-11. While my support would remain in place, I would understand why others -- perhaps many -- would dismiss this nomination out-of-hand.

Letter 153: Fake News, Hate Speech, the Social Media and the 1st Amendment

“If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” President Jefferson, 1801; first inaugural speech

“As well-meaning as they might be, warning labels and Wikipedia links aren’t likely to solve YouTube’s misinformation problem, because it’s built into the structure of the platform, as it is with Facebook and the News Feed. Social networks have an economic interest in fuelling this process, in part because it keeps users on the platform.” Matthew Ingram, 2018; Columbia Journalism Review via Pew Media Research

UPDATE / CORRECTION, 11th April 2018: The essay mistakenly states that Facebook sells data supplied by users directly to advertisers. This is not the case, as Mr Zuckerberg explains here. Facebook monetizes such data by leveraging their usefulness to advertisers (e.g., in targeting advertisements to particular users).

BLUF (bottom-line, up-front). It may be time to review what political speech is protected; a private sector solution is available.

SUMMARY. Recent news reports about manipulation of, and misinformation disseminated through, the social media raise difficult and delicate questions about how the First Amendment applies in a day when technology has arguably redefined what censorship is and how the still relevant original intent should apply.

A private sector approach may exert judgement as well as standards. Rather, the idea of product and errors-&-omissions liabilities may prove to be more operative. The social media manufacture and disseminate information for end users and the latter pay for it in kind with their personal data. The social media monetizes users' data by selling them to advertisers.

SMOKIN' in the BOYS' ROOM 

Yes, it is censorship and the free press that we discuss and I appreciate an old friend’s timely clarification between individuals and institutions. The concern over censorship raised applies very well to individuals. The defense of President Jefferson of an individual's liberty to express outrageous speech and opinions held that their open airing, subsequent debate and ultimate dismissal by the larger society would attest to the vitality of that democratic polity.

In this sphere, I concede, algorithms will have to do. The social media also have the right -- obligation -- to edit and winnow out content they deem inappropriate at their discretion. The rub occurs when it comes to an institutional adversary, particularly another nation or régime, aimed at eroding the legitimacy of a working democracy -- since popular opinion and discourse are its center of gravity -- and threatening the institutions themselves. A democracy has a duty to protect its people and its discourse.

Adversarial governments, non-state actors, and bots simply should not enjoy 1st Amendment protections inside American public discourse. How to deal with these direct threats is challenging; the danger may not be very clear but it is very present. That is the dilemma. Similar to impulses toward censorship during the ‘Red Scare’ of the 1950s, Americans need to have faith in their institutions.

Source: "Walking the Brand Protection Tightrope"; Brand Quarterly.

In addition to questions raised below, transparency of sources of the identities of disseminated content visibly attached to bot-generated posts may suffice. Yet, like the debate about the 2nd Amendment, we face a question of scale. It is reasonable to assume that the Founders -- Messrs Jefferson, Mason, Madison et al. -- could not have envisaged the magnitude of lethality of contemporary 'rifles'.

Likewise, printing up a thousand pamphlets for local distribution, with multiple printings for regions beyond, is simply on a scale altogether different from the immediate dissemination of misinformation -- arguably dangerous (though not as evident as screaming '¡FIRE!' in a theater) -- through hundreds of bots and across thousands or millions of screens.

Additionally, this misinformation has been shown to make its way into mainstream media per the C.J.R. article. I believe -- and these are beliefs we debate, not opinions dressed up as self-evident principles to justify rigid and uncritical application -- that a democratic society is not betraying its ideals and liberties by defending itself against organized misinformation aimed at undercutting it.

Recent testimony by senior execs at Google, F.B. and Twitter at Congressional and Parliamentary hearings have shown that the algo-game is much like the myth of Sisyphus. The platforms are responsive yet smart black-hats then game the new rules; it reminds me of what happened in the corruption of Wall Street during my years in banking. 

Simply relying on rules without muscular and anticipatory discretion, as articulated by Niall Ferguson*, can be damaging through an undetected and unaddressed corruption of the regulatory régime. Nevertheless, discretion by regulators without codified accountability is a prescription for the gradual onset of tyranny. Remember the uneasy balance required here will remain publicly transparent and accountable. When the balance is disturbed, the society has the means to restore the balance. We saw this occur with enhanced interrogation and the NSA domestic surveillance programs. 

SO HERE are the QUESTIONS for READERS to CONSIDER:

• Is fake news protected speech?

• Is eliminating hate-speech from the public discourse censorship?

• Do bots merit 1st Amendment protections?

• What foreign entities operating outside of the U.S., if any, have 1st Amendment protections?

• Are the social media information platforms only or are they news outlets?

• Is editorial discretion by a social media platform a form of censorship?

• Are mandatory and evenly applied waiting periods before information release -- on key words and links -- censorship via prior restraint?

• If not prior restraint for shorter periods, how short should waiting periods be -- thirty minutes, several hours, one or two days?

• Are the social media information platforms or are they manufacturers and disseminators of content and data?

• If a particular social medium manufactures and disseminates of content and data (i.e., content for users and personal data collected for advertisers), would enforceable product and errors-&-omissions liabilities apply to the social media platforms?

• Does obscenity involve only content with no political, artistic, social value in a sexual sense?

So we circle back to the basic concern over censorship as a valuable resource in making a nuanced response to a subtle threat. Hackneyed thinking is even less effective than algorithms. Ironically, the publicity of Nikolas Cruz's hateful Instagram posts could very well have benefitted the public welfare by tipping people off to intervene.

In those cases, the social media would serve the common welfare by conveying censored information to law enforcement, mental health agencies, schools, and other institutions. Perhaps, in applicable cases, parents should be clued in, too. In that manner, the risk of copy-catting or momentum toward bloodshed generated by widespread dissemination of violent content might be mitigated. Yet the dark-net complicates things.

PRIVATE SECTOR BAIL-out?
A friend’s concern of censorship driving hate-speech and fake news onto the dark net has to be kept in plain view. An emotional response with the subtlety of a sledge-hammer could drive fake news to that less visible domain, quite foreseeably to impose consequences even worse than the antecedents addressed. So, the arguments above likely will not make much headway. The problem will persist.

If not a government-led approach to curtailing destructive content aimed at de-legitimating our institutions and freedoms or calculated to incite violence, what can we do short of intervention or overt censorship? Perhaps the private sector can chip in here. The thesis proposed here is that the social media manufacture and sell two intangible products.

The more visible product is content. The less visible is user data, often behavioral. Users pay for the content they consume or create by surrendering data on preferences and interests. The platforms monetize the collected data by targeting precisely the potential buyers for paying advertisers. Viewed as manufacturers and sellers of intangible products makes the social media accountable in an extra-governmental way.

When deceptive hate-speech and other content foreseeably incite violence (e.g., the Comet Ping Pong Pizza shooting in D.C.) or when fake news squarely attacks the legitimacy of U.S. institutions (perhaps libel against an institution), a product liability exposure could arise and, perhaps, be prohibitively expensive for the social media. This idea finds more traction with the former instance of violence and its inspiration caused by a defective content distributed to the consumers of it.

For damage done to public discourse, the liability of errors-&-omissions might attach to the social media, specifically the programmers of the algorithms or those that either edit or filter content. After all, if bots should not enjoy 1st Amendment protections (as I assert), then algorithms ought to be considered as something less than people committing willful mistakes or foreseeable negligence.

Beyond trying to be clever and evade censorship restrictions, this application of basic insurance concepts really boils down to aligning private micro-incentives, born in the private sector, with the communal interest of protecting ‘protected speech’ only. That is to say: creating an over-riding economic interest for the social media to exercise editorial discretion in the same manner that The New York Times, The Wall Street Journal, ‘PBS News Hour’, ‘Sixty Minutes’ and so many other media outlets, of all ideological bents, already do.

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*Unfortunately, I can not track down the specific thought (on video) by Dr Ferguson. In essence, his thought was that the Bank of England had a better regimen of discretion and rules in the nineteenth century. As long as the regulators themselves acted as honest fiduciaries of the larger financial system, oversight worked better with direct interventions into the market to shut down or discipline institutions immediately before consequences could multiply into financial contagion. The closest example of this idea was the Federal Reserve’s intervention into the crisis precipitated by the collapse of Long Term Capital Management in 1998.