The Senate is about to call the roll on Kavanaugh...

... just as soon as these protesters can be cleared out of the gallery.

AND: That's it! Kavanaugh has survived the ordeal. 50-48, confirmation.

I was touched that Senator Murkowski withdrew her "no" vote in deference to Senator Daines who wanted — needed — to be present at his daughter's wedding, so that he did not need to rush back in the middle of the day to register the "yes" vote that was his to give.

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A retired law professor just unseriously hoped that Vox has hit rock bottom.

Here's what I'm looking at:



Oh, isn't it interesting? There's a new essay that purports to see “troubling similarities” between Hitler's Germany and present-day America. And it's "different" from all the old essays that already claimed to see and be troubled by similarities. It's a choice to highlight similarities when there are also differences. For example I could say that there are similarities between Hitler's gesture in that screenshot and Melania's. There are also differences, and it would be a choice of mine to accuse Vox of juxtaposing those images as a way of saying Melania is like Hitler. I could just as well say those images were juxtaposed as a way to say Melania is different from Hitler. Or maybe there's no juxtaposing at all, and it's pure happenstance that Melania got tucked in over there, to the right of Hitler and underneath "Brett Kavanaugh’s confirmation will delegitimize the Supreme Court — and that’s good/It’s time America woke up to the radical right that’s run the Court for years."

That's some hyperventilating by Matt Yglesias, and I don't know where he gets the authority to "wake up" America to what's really going on at the Supreme Court. You know, Vox touted that new essay about America and the Nazis precisely because it is written by "one of America’s most eminent and well-respected historians of the Holocaust." And now here comes Matt Yglesias, who is not an eminent and well-respected Supreme Court scholar, and he's eager to wake us up to the "reality" of the "radical right" that's been "run[ning]" the Supreme Court and to explain why it's good for the Supreme Court to be "delegitimized."

When the Supreme Court gives lefties outcomes lefties like, they want conservatives to stand down and accept that the Court is doing proper, even brilliant, legal work. It's analogous to what I call "civility bullshit." You propound belief in something when it serves your interests, but you violate it without a care when your interests go the other way.

I'm interested in this word "delegitimize." I wonder, is it "delegitimize" or "delegitimatize"? The OED doesn't contain the word "delegitimatize," but "delegitimize" is only a subentry, under the entry for the prefix "de-" and without a definition, just 2 historical examples, the oldest of which is from 1969. What a year, 1969! I can't link to the OED, but let me cut and paste this telling quote:

1969 C. Davidson in A. Cockburn & R. Blackburn Student Power 349 People will not move against institutions of power until the legitimizing authority has been stripped away... And we should be forewarned; it is a tricky job and often can backfire, de-legitimizing us.

It looks like we're seeing the word coined right there! It works because we already know "legitimize." But is it "legitimize" or "legitimatize"? Both "legitimize" and "legitimatize" have been around since the 1600s.

"Legitimatize" is defined as "To make legitimate; to serve as a justification for (something); spec. to make (a child) legitimate by legal enactment or otherwise." The OED tells us it's rare, but John Cheever used it in 1961:

1961 J. Cheever Jrnls. (1991) 152 The most important thing he did for me was to legitimatize manly courage.

Harrumph! Sounds right wing. Let's check "legitimize." The OED refers us to "legitimatize" for the definition but does not warn us that it's rare. I guess people don't like too many syllables.

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"Our Supreme Court confirmation process has been in steady decline for more than thirty years. One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom."

From the Susan Collins speech in the Senate yesterday.

I read that and thought, no, this is not rock bottom. There's more ahead, lower places to sink. Why wouldn't there be? Maybe the 2018 elections will punish the Democratic Party for what it did with the Kavanaugh nomination, and everyone will realize they'd better never do anything like that again. But to say that is to say, there is a lower depth, and they've got to get there before they'll see they've got to enter recovery.

Notice the connection between "rock bottom" and "hope": "One can only hope... the process has finally hit rock bottom." "Rock bottom" means more than just: at least we can't sink any lower. It means a confrontation with reality that shocks you into changing your ways.

On this notion of "hitting rock bottom" — no, don't go to Urban Dictionary! — I found an article (in NY Magazine) by Jesse Singal, "The Tragic, Pseudoscientific Practice of Forcing Addicts to 'Hit Rock Bottom'":

One of the many impressive things about Maia Szalavitz’s new book Unbroken Brain: A Revolutionary New Way of Understanding Addiction, is how effectively she debunks various myths about addiction and how to treat it. In fact, the book’s main argument is that many people are misreading what addiction is altogether: It should be seen not as a disease or a moral or personality shortcoming, but rather a learning disorder. “Addiction doesn’t just happen to people because they come across a particular chemical and begin taking it regularly,” she writes early on. Rather, “[i]t is learned and has a history rooted in their individual, social, and cultural developments.”

Or, as Szalavitz put it to the Daily Beast: “If you don’t learn that a drug helps you cope or make you feel good, you wouldn’t know what to crave. People fall in love with a substance or an activity, like gambling. Falling in love doesn’t harm your brain, but it does produce a unique type of learning that causes craving, alters choices and is really hard to forget.”...

As Szalavitz explains, the idea comes from “one of [Alcoholics Anonymous’s] foundational texts, 12 Steps and 12 Traditions.” She pulls this excerpt:

Why all this insistence that every A.A. must hit bottom first? The answer is that few people will sincerely try to practice the A.A. program unless they have hit bottom. For practicing A.A.’s, the remaining eleven Steps means the adoption of attitudes and actions that almost no alcoholic who is still drinking can dream of taking. Who wishes to be rigorously honest and tolerant? Who wants to confess his faults to another and make restitution for harm done? Who cares anything for a Higher Power, let alone meditation and prayer? Who wants to sacrifice time and energy in trying to carry A.A.’s message to the next sufferer? No, the average alcoholic, self centered in the extreme, doesn’t care for this prospect—unless he has to do these things in order to stay alive himself.

Under the lash of alcoholism, we are driven to A.A. and there we discover the fatal nature of our situation.

Since the first of the 12 steps an A.A. member must work through is to admit to “admit their powerlessness” over their addiction, it makes sense that the program would embrace a device like “rock bottom.” It’s only when your alcoholism (or other addiction) has gotten so bad you’ve been kicked out of your house by your spouse, have alienated all your friends, and are down to the last $50 in your checking account, that you’ll finally be able to realize just how far you’ve fallen — or something. Fully buying into the program requires desperation, in other words, and to “help” addicts get to that desperate point is to help them recover: “From this perspective,” writes Szalavitz, “the more punitively addicts are treated, the more likely they will be to recover; the lower they are made to fall, the more likely they will be to wake up and quit.”

Szalavitz explains that this is a totally pseudoscientific concept.... For decades, Szalavitz writes, programs like Phoenix House and Daytop used “sleep deprivation, food deprivation, isolation, attack therapy, sexual humiliation like dressing people in drag or in diapers, and other abusive tactics in an attempt to get addicts to realize they’d ‘hit bottom’ and must surrender.”...

[W]hen it comes to “hitting bottom” and so many of the other pseudoscientific approaches to fighting addiction, the actual goal — or part of it, at least — has always been to marginalize the addict, to set them apart and humiliate them. There’s a deep impulse to draw a clear, bold line between us, the healthy people, and them, the addicts. What clearer way to emphasize that divide than to cast them down into a rock-bottom pit, away from the rest of us?

American politics is shot through with us/them rhetoric and emotion right now. I don't know the way out, other than to resist it myself, as I continue my daily scribblings here. I like hope as much as the next person, but I don't think hitting rock bottom is the beginning of a path of recovery, and if I did, I'd need to believe that the Senate can't go any lower, and I don't think the musings of Susan Collins are going to turn anyone back.

It was a great speech, but why did we hear this from her so late in the process she purports to decry? Why is she only willing or capable of saying these things when she's looking back on the wreckage?

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"The Me Too movement is real. It matters. It is needed, and it is long overdue... I found [Ford's] testimony to be sincere, painful and compelling.

"I believe that she is a survivor of a sexual assault and that this trauma has upended her life. Nevertheless, the four witnesses she named could not corroborate any of the events," said Senator Susan Collins, explaining her vote for Brett Kavanaugh. "We will be ill-served in the long run if we abandon the presumption of innocence."

Reported in "Collins and Manchin Will Vote for Kavanaugh, Ensuring His Confirmation" (NYT).

Here's a comment over there (with over 1,000 up votes):

Thank you Heidi Heitkamp, and thank you Lisa Murkowski for standing up for women and against sexual predators. And how about you Susan Collins? Do you want to be the only woman in the Senate to put a man creditably accused of sexual assault against multiple women who has clearly demonstrated his intent in the very recent Jane Doe case to eviscerate, if not overturn, Roe v. Wade? It's time to stand with your sisters and vote "No!" to white male power and privilege to avoid responsibility for sexual misconduct by blaming and mocking the women.

ADDED: Here's the Susan Collins speech:



Full text (NYT):

Informed by Alexander Hamilton’s Federalist 76, I have interpreted [the Senate's advise-and-consent role] to mean that the President has broad discretion to consider a nominee’s philosophy, whereas my duty as a Senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial thought....

Some argue that because this is a lifetime appointment to our highest court, the public interest requires that doubts be resolved against the nominee. Others see the public interest as embodied in our long-established tradition of affording to those accused of misconduct a presumption of innocence. In cases in which the facts are unclear, they would argue that the question should be resolved in favor of the nominee.

Mr. President, I understand both viewpoints. This debate is complicated further by the fact that the Senate confirmation process is not a trial. But certain fundamental legal principles—about due process, the presumption of innocence, and fairness—do bear on my thinking, and I cannot abandon them.

In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.

The presumption of innocence is relevant to the advice and consent function when an accusation departs from a nominee’s otherwise exemplary record. I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward.

ADDED: I'm only quoting a portion of Collins's speech, which is quite substantial. Here is a much shorter speech from Senator Lisa Murkowski, the one Republican who is voting no:

This hasn’t been fair to the judge, but I also recognize that we need to have institutions that are viewed as fair and if people who are victims, people who feel that there is no fairness in our system of government, particularly in our courts, then you’ve gone down a path that is not good and right for this country. And so I have been wrestling with whether or not this was about qualifications of a good man or is this bigger than the nomination.

And I believe we’re dealing with issues right now that are bigger than the nominee and how we ensure fairness and how our legislative and judicial branch can continue to be respected. This is what I have been wrestling with, and so I made the — took the very difficult vote that I did.

I believe Brett Kavanaugh’s a good man. It just may be that in my view he’s not the right man for the court at this time. So I have taken my vote here this morning, I’m going to go back to my office and write a floor statement that is more fulsome and have the opportunity to have that.

But this has truly been the most difficult evaluation of a decision that I have ever had to make, and I’ve made some interesting ones in my career. But I value and respect where my colleagues have come down from in their support for the judge, and I think we’re at a place where we need to begin thinking about the credibility and integrity of our institutions.

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Oh! I'm surprised at myself, forgetting the first Monday of October! Did anyone notice the actual Supreme Court cranked back into gear today?

The empty seat is so interesting that maybe you, like me, forgot to hail the return of the actual Supreme Court today. I'd given in a thought now and then, maybe last week, but it slipped my mind today until just now.

Here's Joan Biskupic at CNN, noting the return of the Court, but forefronting the unfilled seat: "An empty space and an idle microphone: The Supreme Court returns."

The associate justices repositioned their tall black chairs on the two sides of Roberts, in their new order of alternating seniority without Kennedy... At the end of the bench, where the new justice would sit, was an empty space and idle microphone.

In their first case, testing the reach of federal environmental law, the eight appeared to be dividing along familiar ideological and political lines, conservatives versus liberals.... [T]he high court [might fail] to set a national standard on some bubbling controversies, whether regarding the Endangered Species Act, in dispute Monday, or related to a Tuesday case brought by a Death Row inmate with dementia, when elderly convicts may be exempt from capital punishment....

In a practical vein, 4-4 splits may not be the only consequence for a shorthanded court. Without a full slate of justices, they may also avoid taking up substantial new questions, as happened when the Senate had stalled on Obama nominee Judge Merrick Garland. Among the contentious issues currently pending for possible review is whether federal law prohibiting sex discrimination covers bias based on sexual orientation and gender identity....

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Elena Kagan won't talk about the Kavanaugh controversy, but she will talk about how the Court functions with only 8 Justices.

Kagan was speaking at UCLA law school on Thursday night, and she spoke with experience about the problem of an 8-Justice Court's vulnerability to 4-4 splits, since that is the situation her Court confronted for the year that passed between the death of Antonin Scalia and the swearing-in of Neil Gorsuch.

"None of us wanted to look as if the court couldn’t do its job," she said. "I think we all felt as though the country needed to feel that the court was a functioning institution no matter what was happening outside."...

She said justices engaged in lengthier discussions at the time and even worked on finding agreement on smaller points when they couldn’t settle the larger issues at stake.... Even with a full court, Kagan said consensus-building, “especially perhaps in a time of acrimony and partisanship in the country at large, makes a lot of sense.”

“The court’s strength as an institution in American governance depends on people believe in it having a certain legitimacy ... that it is not simply an extension of politics,” she said.

I read that to mean that it's more important to sustain belief in a myth than to see the actual truth. The myth is that the Supreme Court is "not simply an extension of politics." I note that she phrases the myth at a more easily credible level than what some people would like us to believe — such as the Court is completely above all politics. That is, after all, the myth that prevails at confirmation hearings, where the nominees all say that they will do nothing but decide cases according to the law and no political leanings will come into play and distort their entirely legal reasoning. Kagan only says that the Court decides cases in a way that is "not simply an extension of politics."

Not "simply," but how about complexly? Not merely "an extension" of the politics, but isn't it, as it operates independently, doing something that a sophisticated person will understand to be political?

It's strange to be talking about the importance of useful beliefs over truth in the context of the controversy Kagan ostensibly seeks to avoid. What are the other institutions whose strength depends on our believing that they have a certain legitimacy?

The Senate. Should we believe in its legitimacy to keep it strong? That's not the Kagan idea. To transplant her idea to the Senate: The Senate itself should do what it can to inspire our belief it is performing its advise-and-consent role grounded in good procedure and principle. It is struggling to do that, and the struggle is much easier to see than the inner workings of the Supreme Court.

The patriarchy. Is it good for us to believe that it is legitimate? Just calling it — what is it?! — "the patriarchy" makes it sound illegitimate. I bet you — some of you — want to say it doesn't even exist. But if it does exist in America, it wants us to believe in it as something with a different name — perhaps meritocracy or individual choice. Believe in that, and you'll keep it strong.

The #MeToo movement. Its strength as an institution depends on people believing in it as having quite a lot of legitimacy. It's fragile. Overuse it and it will collapse. Won't it? If not, we should be afraid of its strength. But unlike the Supreme Court, it's not a small group of people who can consult and reach consensus about how far to extend its power and how to perform its power in public. There are millions of people who can tap the power of the movement. There's the relatively careful release of the Christine Blasey Ford allegations, and there's the follow on enthusiasm of Michael Avenatti and who knows who might suddenly speak up on social media?

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"Kavanaugh’s ‘choir boy’ image on Fox interview rankles former Yale classmates."

WaPo reports on the inner feelings of a large group of human beings.

"... rankles former Yale classmates." There should at least be a "some" in that headline: rankles some former Yale classmates.... 

They're purporting to talk about a set of persons that includes thousands. I'd say "hundreds" if it was only Yale Law School, but this is about Kavanaugh's college years. Within such a large group, of course, you're going to find people who are rankled by Kavanaugh's self-presentation as a paragon of virtue. That would naturally happen even if this weren't a situation where many — most? — people are motivated by larger political goals.

I'm torn between wanting to say how can the Washington Post know what's going on in the nervous system of the set "former Yale classmates" and thinking it's completely obvious and unspecial for almost anyone to be annoyed or suspicious about anyone who tries to put himself across as good to the core. I've said the same thing myself a couple times: When someone relies heavily on his own purity, it makes me wonder about the dark side. Surely, if Kavanaugh were a fictional character, he'd be a secret monster. What's he hiding behind his humble visage?

The WaPo article quotes, first, Liz Swisher, "who described herself as a friend of Kavanaugh in college":

“Brett was a sloppy drunk, and I know because I drank with him. I watched him drink more than a lot of people. He’d end up slurring his words, stumbling,” said Swisher, a Democrat and chief of the gynecologic oncology division at the University of Washington School of Medicine. “There’s no medical way I can say that he was blacked out. . . . But it’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess.”

She's a doctor, and there's no "medical way" to say he had blackouts, but she says it anyway, in the form of saying that he can't say that he didn't. Swisher swished that around nicely, not putting her medical credibility at risk at all.

Lynne Brookes, who like Swisher was a college roommate of one of the two women now accusing Kavanaugh of misconduct...

Whoa! I'm surprised that this roommate-of-an-accuser status is revealed only after I've digested Swisher's semi-medical diagnosis.

... said... “He’s trying to paint himself as some kind of choir boy,” said Brookes, a Republican and former pharmaceutical executive who recalled an encounter with a drunken Kavanaugh at a fraternity event. “You can’t lie your way onto the Supreme Court, and with that statement out, he’s gone too far. It’s about the integrity of that institution.”

What's the lie? Kavanaugh admitted he drank. But Brookes is "a Republican," but her assertions are intemperate. The lie in question I infer, reading on, is that Kavanaugh denied ever suffering memory lapses from drinking.

I'm looking to see if there are any other classmates in the set of those rankled by the choir boy image. No. And really, only Brookes spoke in those terms.

Finally, I get back to Swisher and Brookes. Both were roommates with Deborah Ramirez (the woman who told The New Yorker that Kavanaugh exposed his genitalia near her face during a bout of drinking).

The key question, I infer from the text, is not whether the "choir boy" imagine rankled, but whether these women have any evidence of Kavanaugh suffering memory blackouts. I can see the WaPo reporters must have pressed these 2 women on the subject. How could they know? One way would be if they heard Kavanaugh say that he couldn't remember. We're told Swisher "could not recall a specific instance" like that.

But Brookes, Ramirez’s roommate for a year, said she was present one night when Kavanaugh participated in an event with his fraternity, Delta Kappa Epsilon. Brookes said she believes there was “no way” he remembered all of the behavior she observed that night, when fraternity brothers pushed pledges to get “ridiculously drunk” and do “ridiculous things.”

Why is there no way he remembered? It seems to be just another way to say he was really really drunk:

Brookes said she remembers seeing Kavanaugh outside the Sterling Memorial Library, wearing a superhero cape and an old leather football helmet and swaying, working to keep his balance.

He was ordered to hop on one foot, grab his crotch and approach her with a rhyme, Brookes said. He couldn’t keep balanced, she said, but belted out the rhyme she’s remembered to this day: “I’m a geek, I’m a geek, I’m a power tool. When I sing this song, I look like a fool.”

“It’s a funny, drunk college story that you remember — at least, I remember,” Brookes said. As she tracked his career over the years, and his rise in the federal court system, she said, “I thought it was so funny to think that’s the Brett who sang that song.”

Yeah, it's funny. But it doesn't mean he had a memory lapse. Or even that he was that drunk. He hopped on one foot, didn't he? All Brookes can say is that he wasn't "balanced." If you were so drunk that you'd necessarily suffer memory loss, wouldn't you fall if you tried to hop? Wouldn't you forget the lines of the rhyme? The inferences to be made from this story are not, I think, that he was blackout drunk, but that he was in thrall to some fraternal hazing.

The Post contacted Brookes and Swisher last week because they lived with Ramirez at different points during their undergraduate years. Neither returned calls or emails until Tuesday. Ramirez previously told neither of them about her allegation... but Brookes and Swisher said they believe her account.

Oh! So the real news here is that Ramirez's roommates won't corroborate her story! They say they believe her, but they were in a position to hear the story close in time to when it allegedly happened and they did not. Back before The New Yorker broke the story, they would not respond to calls and emails seeking to corroborate it. Only after The New Yorker's publication did they answer some questions, and they seem to have been led into bolstering the blackout drunk theory of why Kavanaugh is contradicting his accusers.

NOTE: This is the first post in a series of posts about Kavanaugh this morning. Comments on this post should only be about this article. Here's my post warning you that a series of posts is forthcoming. If you want to draw attention to other articles, do so in the comments section for that post, not this one.

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"What [Christine Blasey Ford is] describing, I saw at parties in 2003 and ’04. Boys trying to take advantage of girls who were drunk."

Said Eric Ruyak, who attended Georgetown Prep in the 2000s — long after Kavanaugh left — quoted — for what it's worth — in USA Today.

"It’s predominantly white, very homogeneous," Ruyak said. "There’s a tremendous amount of wealth, no women, and, quite frankly, male teachers making lewd jokes. I feel badly. I know plenty of wonderful guys who went to Prep. "When I went to Northwestern (University), I saw then how malignant that environment really is.”

The article also quotes Elizabeth Mitchell, "a 1995 graduate of Georgetown Visitation, an all-girls Catholic school whose students often interacted with Georgetown Prep's."

"The re was definitely a heavy-drinking, country club-entitled, future-kings idea that I think prevailed," she said. "You had this culture where mom and dad weren't home, and you had these massive mansions."

Why — given that we're so ready to talk about race in connection with this story — are we not talking about religion? These are Catholic schools, and the teachers there attempt to shape the character of the students.

People are talking about Mark Judge's book "Wasted: Tales of a Genx Drunk," but I'm reading his other book "A Tremor of Bliss: Sex, Catholicism, and Rock 'n' Roll." And there's also "God and Man at Georgetown Prep: How I Became a Catholic Despite 20 Years of Catholic Schooling," but at the moment it costs $1,500, so I can't tell you about that, but you can see from the title Judge is highly critical of his own Catholic schooling.

We're too afraid to talk about religion, even though we've plunged deeply into sex and even thrown race in where there's scarcely any reason. Why don't we talk about religion? There are so many Catholics on the Supreme Court that it's bizarre not to talk about it. Only Breyer and Ginsburg are not Catholic. (Gorsuch was raised Catholic and, like Kavanaugh, attended Georgetown Prep, but since marrying, he has attended Episcopal services with his wife and, I'm reading, refrains from saying whether or not he is Catholic.)

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