Wednesday, October 17, 2018

Kavanaugh coda

I wrote three NR pieces on Brett Kavanaugh after he was nominated. The first criticized prediction models purporting to locate his ideological position among the sitting justices. The second congratulated him for his inspired defense against accusations of sexual misconduct. The third noted that he would help determine the crucial "median justice" in the event that a conservative replaces Ruth Bader Ginsburg.

Here I explain that the sexual assault allegation leveled by Christine Ford against Brett Kavanaugh is almost certainly not true.

First, a word about bias. It's no secret that I want to see more originalists on the Supreme Court, and Kavanaugh's rejection might have been a blow to that goal. But the people who examine evidence are bound to be less biased than the people who make subjective character judgments. Most of Ford's supporter's did the latter. She seemed sincere, they said, and credible. But if we're just looking at a person's body language or tone or general affect, then we'll see what we want to see. Supporters will see credibility, opponents will see deception. By contrast, facts and evidence are objective. Taking them seriously should reduce our bias. So let's do that.

The most important evidence is the testimony of the three other people Ford placed at the party. Mark Judge: "I do not recall the events described by Dr. Ford.... I never saw Brett act in the manner Dr. Ford describes." Patrick Smyth: "I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct she has leveled against Brett Kavanaugh.... I have never witnessed any improper conduct by Brett Kavanaugh towards women." Leland Keyser's lawyer: "Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”

These statements are devastating to Ford. With no corroboration, all her supporters can do is play defense, arguing that everyone is unreliable. They say Mark Judge is partially implicated, so of course he would lie. Patrick Smyth is a Kavanaugh friend, so he's lying too, or maybe he just doesn't remember. And Leland Keyser, though a Ford friend, probably doesn't remember the party either. These excuses are weak. In the cases of Judge and possibly Smyth, perjury is an awfully big favor for a friend! But focus on Keyser's testimony. She did not say she merely fails to remember a specific party. She said that she never recalls meeting Kavanaugh in any circumstance. That is a much stronger claim. Furthermore, this party should have been more memorable than most for Keyser, since it was the time that her friend Chrissy went upstairs with two drunk older boys who turned the music up loud. Then the boys came downstairs alone, and Ford left the house without notice. None of this rings a bell for Keyser.

Kavanaugh's own testimony is relevant here as well. Assume for a moment that Ford's allegation is true, but Kavanaugh still wanted to deny it. If so, a statement claiming the party never happened would have been very risky. If any witnesses subsequently placed him at the party, even if they didn't see the attempted rape, it would be curtains for his nomination. A safer approach for a guilty man would be to admit there was a party and some drunken messing around, but deny anything non-consensual took place. Kavanaugh didn't take the "safer" approach. He told the committee the party in question never happened. If we believe the dates on the various letters to the committee, he did this before the other witness statements came in. This implies either that Kavanaugh enjoys Russian roulette, or, more likely, that he was telling the truth.

The matter should have ended there. With the alleged witnesses unable to corroborate the allegation, there was no basis for a committee hearing, let alone an FBI investigation. But the problems with Ford's allegation go deeper. Let's turn now to the holes in her story, which are numerous. She doesn't remember when the party took place. She doesn't remember where the party took place. She doesn't remember who invited her, or how she got there. She doesn't remember how she got home -- despite testifying that she ran down the stairs and out the front door, recalled "being on the street and feeling an enormous sense of relief," and acknowledged that her home was not within walking distance of the country club that was near the party. During the whole committee investigation, no one came forward to testify to something like the following: "Oh, yes, I remember that night I had to pick up Chrissy early, after she called me sounding distressed. She was very quiet and seemed troubled, but she wouldn't say why. I asked where Leland was..." etc.

Furthermore, if Ford's account is accurate, she abandoned her friend Leland at a house where she would now be the only girl at a party full of drunk older boys, two of whom had just attempted rape. Yet Ford never said that she tried to warn Keyser, and neither woman remembers talking about the incident later.

And there are more holes. Ford testified that the party occurred "after a day of swimming at the club." She said, "Brett groped me and tried to take off my clothes. He had a hard time because...I was wearing a one-piece bathing suit under my clothes." Why would she be wearing a bathing suit under her clothes after a day of swimming? Wouldn't the suit be wet?

In her letter to Sen. Dianne Feinstein, Ford wrote, "They locked the door and played loud music, precluding any successful attempts to yell for help." But after she escaped to the bathroom, "Both loudly stumbled down the stairwell, at which point other persons at the house were talking with them." How did Ford hear the talking downstairs, with the loud music playing upstairs? When asked about it at the committee hearing, Ford amended her statement to say that she had been "just assuming" they were talking with other people downstairs.

Ford's story also has major inconsistencies. As recounted in the memo prepared by prosecutor Rachel Mitchell, the timing of the assault changed from the mid-1980s, to the early 1980s, to the 1980s with "early" crossed out, then to the summer of 1982. Her age also changed from late teens to age 15. No explanation was provided for why the timing changed and how it became so much more specific. Also inconsistent is the number of people at the party. That changed from four attackers (supposedly an error by her therapist) to two attackers with two boys downstairs. Then it was "me and four others" at the party, which would seem to preclude the presence of Keyser, who was not mentioned during the polygraph. Ford's final testimony included Keyser and "one other boy whose name I do not recall." Whether intended or not, that mystery boy helps make Ford's testimony non-falsifiable, as investigators now cannot cross-check the floor plan of every partygoer's house with Ford's description. Also note that the mystery boy, though not implicated in any wrongdoing, never came forward to say that he had attended or hosted a party similar to the one Ford described.

The circumstances in which Ford's story emerged also are suspicious. For 30 years she told no one about Brett Kavanaugh. Then, according to the Washington Post, "after going through psychotherapy, Ford said, she came to understand the incident as a trauma with lasting impact on her life." This raises the possibility that her memory of the incident has been altered or "recovered" by dubious psychological techniques. Some commentators have even wondered about hypnosis. We don't know what happened in therapy, but Ford's story does sound strikingly like a dream, especially in the sense that she cannot locate the incident in time or space. She finds herself in a strange place not knowing how she arrived, but there are people she knows there. Something terrible happens, she runs, and then -- she wakes up? Again, whether psychotherapy has affected her memory is unclear, but Ford's refusal to share the therapist records raises legitimate questions.

Finally, the broader political context cannot be ignored. Ford's team acted like Democratic party operatives throughout the process, undermining her stated "civic duty" rationale for coming forward. Ford said she told her story confidentially in a letter to Feinstein and then agonized over whether to go public. But had Ford allowed Feinstein to share her letter with the committee, Ford could have provided confidential testimony to committee investigators. The investigators then could have pursued the case during the normal background investigation period, protecting everyone's privacy with no media circus and no delays. Sharing the letter with the Democratic leader but not with the rest of the committee makes little sense for someone who has vital information to convey, but it makes a lot of sense for someone who wants to time her accusation to inflict maximum damage on Kavanaugh's confirmation hopes.

Immediately after her allegation leaked, Ford spoke with the New Yorker and the Washington Post but not with the committee. Her lawyer went on various talk shows, but Ford refused to sit for a phone interview or provide any kind of sworn statement to committee investigators, even after Kavanaugh and several witnesses did so. Why would someone who felt a "civic duty" to convey her Kavanaugh allegation to "those considering his potential nomination" ever turn down an opportunity to do exactly that? This is not expected behavior from an honest witness, but it is expected behavior from someone who wants to game the process.

After the committee agreed to a public hearing, Ford's team delayed and delayed, conveniently buying time to dig up more dubious accusations against Kavanaugh, and also to tweak Ford's testimony to preempt the committee's investigators. (See above on the changing number of boys at the party.) The Ford team made demands, such as barring an outside questioner, that are easier to square with a desire to hurt Republicans than with a desire to get the truth out. And although Democratic staff refused to participate in the committee investigation, they demanded FBI involvement that would cause even more delay. Sure enough, Ford herself endorsed this idea.

Once Democrats heard about Mark Judge's alcoholism, they wanted to put him on trial as a kind of proxy for Kavanaugh. Perhaps the sordid details of Judge's life could be blended into a broader attack on the party culture at Georgetown Prep. But Judge had already denied any knowledge of the incident in a sworn statement. Conveniently, Ford provided a new reason to interview Judge in her own testimony. She repeatedly suggested that the committee needed to ask Judge for the dates that he worked at a grocery store. This would supposedly help identify the time of the incident, but how so was never clear. What was clear was that asking for Judge to testify fit perfectly with Democratic party strategy.

Lastly, as the Mitchell memo points out, Ford claimed not to remember details of the investigation that no reasonable person would forget. For example, she could not remember whether she gave portions of her therapist records to the Washington Post. The memory lapses are convenient in avoiding questions about why she revealed certain information to the media but not to the committee.

There is a pattern of behavior here that would not be expected of someone who just wants to get the truth out. Some of Ford's defenders argue that she was manipulated by her Democratic handlers. Maybe, but that denies agency to a woman who surely can think for herself. She didn't have to go along with what the party wanted, nor did she have to hire Democratic activist lawyers in the first place.

Against all of this, what evidence does Ford have in her favor? Only that she was familiar with Brett Kavanaugh's social circle. That gives her story a surface plausibility that Julie Swetnick's gang-rape tale never had. Beyond having known some of Kavanaugh's friends, Ford says she passed a polygraph test. But courts discount those tests for a reason, and I have no faith at all in a private test arranged and paid for by Ford's lawyers.

Although Ford's evidence is extremely thin, maybe Kavanaugh has credibility issues of his own? For at least a week, Ford's defenders in the media falsely accused Kavanaugh of misrepresenting himself as an abstemious choir boy. "Sometimes I had too many beers" is a direct quote from his testimony, and yet the media ran several hit pieces revealing that...sometimes he had too many beers. Another point of contention seems almost too trivial to mention, but Kavanaugh's friends do seem to have corroborated his explanations for yearbook slang such as "FFFFFF" and "boof," although admittedly "Renate Alumnius" remains ambiguous. Just how quickly the anti-Kavanaugh forces pivoted away from Ford and became "Yearbook Truthers" says a lot about the weakness of her case.

Perhaps Ford's greatest asset was the taboo on accusing her of dishonesty or delusion. Throughout the controversy, it was acceptable to describe her accusation as uncorroborated and to insist on due process. But without a forthright statement that Ford's accusation was probably false, these defenses of Kavanaugh sounded to some people like mere technicalities. Exactly why it was okay to question the honesty of the accused but not of the accuser is something I cannot understand. Yet even now, after the confirmation, "Are you saying Dr. Ford was lying??" is treated by the media as a devastating rebuttal to pro-Kavanaugh arguments. This is what I call the media's "rule by optics." So interested are reporters in the raw appearances of things -- "the optics" -- that they begin to confuse optics with morality. Since we risk appearing unsympathetic when we doubt an accuser, doing so eventually becomes intrinsically wrong in the minds of the media. And not even recent high-profile hoaxes -- including Julie Swetnick! -- have been able to clear up the media's moral confusion.

We need to be able to doubt accusers at least as much as we doubt the accused. We need to be able to point out that Ford's witnesses have no memory of the alleged incident, that her story is full of holes and inconsistencies, that her memory may have been influenced by psychotherapy, and that she acted like a political partisan. Most importantly, we need to be able to conclude that, given the balance of the evidence, Brett Kavanaugh almost certainly did not assault Christine Ford. Forget the subjective assessments of Ford's sincerity, and forget the "bad optics" of doubting it. Just look at the evidence.

Saturday, May 19, 2018

Who is a public charge?

After dropping hints for more than a year, the Trump Administration now appears to be serious about discouraging immigrant welfare use. Longstanding law forbids entry (or adjustment to green-card status) of any immigrant who “is likely to at any time become a public charge.” Unfortunately, U.S. Citizenship and Immigration Services (USCIS) has regulated that law into irrelevance, as “public charge” has become so narrowly-defined that it applies to virtually no one. Under existing regulations, immigrants can receive (or be likely to receive) Medicaid, CHIP, subsidized housing, child care, energy assistance, food stamps, and more, all without risking rejection on public-charge grounds. The administration’s proposed change would allow USCIS to consider these non-cash benefits in making a public-charge determination.

The new rule is common sense. I talked about it on Joyce Kaufman's radio show last week.

Wednesday, March 21, 2018

On ethical issues, go hard or go home

Ruth Marcus spurred quite a discussion earlier this month with her Washington Post column, entitled “I would’ve aborted a fetus with Down syndrome. Women need that right.” Ms. Marcus’s argument was nothing if not blunt. In fact, she elevated the debate by clearly laying out the competing moral claims and explaining how she weighs them.

That’s a lot more than can be said for Leah Torres. She’s an ob-gyn and outspoken leftist who achieved notoriety recently for some gory comments about the abortion process. More frustrating for me was her response to a question about whether she would perform an abortion the day before the due date. The response from Torres: “Would you live on Mars? I can’t imagine this scenario, so I can’t give a fair answer.” Needless to say, the question about late-term abortion poses a classic “hard case” to probe the doctor’s views on exactly when the right to life begins, or when that right outweighs women’s health interests. It is an entirely fair challenge, and someone who is confident in her views about abortion should be happy to answer it. Claiming (dubiously) that a hard case is unimaginable – and therefore deserves no analysis -- is simply a cop-out.

I wrote about another example of “hard-case denial” for National Review earlier this week. To make her point that race-based admissions generate a racial skills gap at universities, Penn Law professor Amy Wax observed that black students at her school “rarely” graduate in the top half of their class. The dean, Ted Ruger, promptly declared her observation false – but you’ll have to take his word for it, because no data are forthcoming. “Penn Law does not permit the public disclosure of grades or class rankings,” he wrote. That excuse is about as lame as it gets. Simply reporting the percentage of black students who graduate in the top half of their class would obviously not reveal confidential information about any individual.

Dean Ruger is avoiding the hard case. Racial preferences in admissions may seem anodyne when presented as merely breaking ties in favor of minority applicants. In that case, standards wouldn’t necessarily suffer. But what if admissions standards must be dramatically lowered in order to achieve the level of racial diversity that elite law schools aim for? That’s the hard case. Rather than run from the data, Dean Ruger should present it openly. If, as expected, the percentage of Penn Law's black students who graduate in the top half is far below the 50 percent that it would be under a merit-based system, he should own it. “Diversity is so important to our school and to broader society that lowering standards is a worthy price to pay,” he should declare. At least then we’d understand his thinking.