"Advise and consent" or "advice and consent"?

Which is it? I'm hearing "advice and consent" — the nouns — but I write "advise and consent" — the verbs. I prefer the sound of "the Senate's advise-and-consent role" (which I wrote here and here).

Kavanaugh, testifying, told the Senators, "You have replaced ‘advice and consent’ with search and destroy." He said "advice," even at the cost of losing parallelism. "Search and destroy" are verbs. If nouns and not verbs are called for, he should have said "You have replaced ‘advice and consent’ with searching and destruction."

A big reason to say "advice and consent" is that the Constitutional text — Article II, Section 2 s— ays:

[The President] with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court....

So maybe text should trump grammar, but if the text should so dominate how we speak, let's start saying "Judges of the Supreme Court." None of this "Justices" foolery.

Anyway, lest you think I'm a stickler for grammar, that's not why I've been preferring "advise and consent." I figured out the grammar after the fact, and I'm ready to hear anyone's explanation that I'm wrong about the grammar. I'm saying "Advise and Consent" because I read the 1959 best-seller "Advise and Consent" and I know the 1962 Otto Preminger movie!





Here's Wikipedia's plot summary of the book, which I'm setting out because there's some resonance with the recent activity in the Senate (boldface added):

A U.S. President decides to replace his Secretary of State to promote rapprochement with the Soviet Union. Nominee Robert Leffingwell, a darling of liberals, is viewed by many conservative senators as an appeaser. Others, including the pivotal character of Senator Seabright (Seab) Cooley of South Carolina, have serious doubts about Leffingwell's character. The book tells the story of an up-and-down nomination process that most people fully expect to result in a quick approval of the controversial nominee.

But Cooley is not so easily defeated. He uncovers a minor bureaucrat named Gelman who testifies that twenty years earlier then-University of Chicago instructor Leffingwell invited Gelman to join a small Communist cell that included a fellow traveler who went by the pseudonym James Morton. After outright lies under oath by the nominee and vigorous cross examination by Leffingwell, Gelman is thoroughly discredited and deemed an unfit witness by the subcommittee and its charismatic chairman Utah Senator Brig Anderson. The subcommittee is ready to approve the nominee.

At this crucial moment in the story, the tenacious Senator Cooley dissects Gelman's testimony and discovers a way to identify James Morton. Cooley maneuvers Morton into confessing the truth of Gelman's assertions to Senator Anderson who subsequently re-opens the subcommittee's hearings, thus enraging the President. When the President's attempts to buy Anderson's cooperation fail he places enormous pressure on Majority Leader Robert Munson to entice Anderson into compliance. In a moment of great weakness that Munson will regret the rest of his life, Munson provides the President a photograph, acquired quite innocently by Munson, that betrays Anderson's brief wartime homosexual liaison.

Armed with the blackmail instrument he needs, the President ignores Anderson's proof of Leffingwell's treachery and plots to use the photo to gain Anderson's silence.The President plants the photo with leftist Senator Fred Van Ackerman, thinking he will never need to use it. But the President has underestimated Van Ackerman's treachery and misjudged Anderson's reaction should the truth come out. After a series of circumstances involving Anderson's secret being revealed to his wife, the Washington press corps, and several senators, Anderson kills himself. Anderson's death turns the majority of the Senate against the President and the Majority Leader. Anderson's suicide and the exposure of the truth about Leffingwell's lies regarding his communist past set in motion a chain reaction that ends several careers and ultimately rejects Leffingwell as a nominee to become Secretary of State.

You can add this book to your Kindle for $10. I think I read it because it was assigned reading in my high school history class in the late 1960s. I believe it's considered to be one of the best novels about the workings of American politics.

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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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"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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"My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me."

Writes Brett Kavanaugh in The Wall Street Journal (not blocked by a paywall):

At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good....

A good effort at striking the right note. Not too conciliatory.  I'd like to know exactly what were the "few things I should not have said." I'm sure one was to Senator Klobuchar: "You're asking about blackout, I don't know, have you [ever had an alcohol-induced blackout]?" And — after she suggested that he's not had a blackout and "Is that your answer?" — he said "Yeah, and I'm curious if you have." He already apologized for that at the hearing: "Sorry I did that. This is a tough process. I'm sorry about that."

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The intemperance of the law professors' "judicial temperament" letter.

I see over 1,000 names on this anti-Kavanaugh letter, many of them names of people I know. I've been with a lot of law professors over the past 4 decades, and the best law professors I have known have routinely expressed disbelief that the judicial opinions they read state the real reasons why the judges decide the cases the way they do. And I don't believe the law professors when they say they oppose Brett Kavanaugh because they have concerns about his "judicial temperament."

From the letter, which I'm reading in the NYT:

We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners.

He was confronted with devastating allegations that were vague and uncorroborated. He knows his own life, yet he was supposed to be committed to "judicious inquiry" about it?! He was supposed to be "open"?! He was supposed to act as though he were absorbing the facts for the first time, like a judge deciding a case? Who wrote this letter? Why did so many law professors sign this text?

Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. 

But the hearing really was partisan! Yes, the Senators were in a tough spot, since they were trying to figure out what happened, but Kavanaugh knows what he himself has done. Kavanaugh was supposed to be supportive of the predicament the Senators got themselves into and not defend himself vigorously?

He was under a vicious attack, and he knew it was unfair and cruel — unless he was lying. If he was lying, then that's why he shouldn't be on the Court. But this "judicial temperament" idea is designed to work even if he was telling the truth.

So we need to read this letter in light of the professors' intent. Imagine an innocent Kavanaugh, under an outrageous attack and subjected to a horrendous ordeal. He expresses indignation and challenges his accusers. But he was supposed to remain calm and be deferential to the Senators, and because he didn't — and for no other reason — he doesn't belong on the Court. Who believes that?!

Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators....

Why would Kavanaugh need to "to sort out with reason and care the allegations that were raised" — he knows what happened in his own life — and why would 1,000 law professors say that he should have?!

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"Students Filed Title IX Complaints Against Kavanaugh to Prevent Him From Teaching at Harvard Law."

The Harvard Crimson reports, naming a student who supposedly said she'd filed a complaint with the University’s Office for Dispute Resolution and has been urging other students to do the same. We're told that "at least 48 students had signed an online petition certifying they had filed a Title IX complaint against the nominee."

The student who got this started argued that Kavanaugh could be accused of gender-based harassment under Harvard's definition: "verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile conduct based on sex, sex-stereotyping, sexual orientation or gender identity." Kavanaugh's mere presence on campus, she and others said, makes a "hostile environment" under Harvard's definition.

[The student] said she hopes students who have previously felt reluctant to file complaints with the University — whether related to Kavanaugh or to other experiences — will see that the formal process gives them “power” and “a right to our feeling of being safe.”

“I hope that, as students file these complaints and engage with this process of singling out accusers and harassers on campus, that it actually can be seen that this process is a little less formidable than the reputation of the process is on campus,” she said.

Another leader in this activism said:

“If you had a meeting in Wasserstein, you don’t know if he’s going to be there... It would be pretty terrifying for any survivor or any person to walk into a building on campus and see someone who has been alleged of a very serious crime.”

Terrifying to see a person accused of a serious crime? Kavanaugh's temperament is being questioned, but what about the temperament of these potential lawyers? Do they not feel called to deal with the difficult world of legal problems? This made me think about one of the most reviled Supreme Court cases, Bradwell v. Illinois, which allowed the state to bar women from the practice of law, back in 1873. From the concurring opinion of Justice Bradley:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.... 

Why don't activist, feminist women aspire to strength?  Promoting the timidity and delicacy of women and running to the authorities with specious, backhanded complaints — what lowly, destructive activism!

IN THE COMMENTS: Lyssa said:

Every now and then, quote-unquote feminists have s minor freak out because some female celebs or young women in general don’t want to be associated with the word “feminist.” This is why. I don’t claim to know what feminism really means; it seems to be something different to everyone, so I generally avoid the term entirely. But if feminism involves this kind of weakness, I want absolutely no part of it.

If I were still in law school, I’d get that Bradley quote put in a t-shirt. It’s awsome.

"Awsome" = a typo or a word that means cute (that is, inspiring people to say "aw").

Anyway, I've had that problem with feminism for close to half a century, but I still care about salvaging the word. Why give it away to people who are undermining the very cause that matters to you? I remember saying — 35 years ago — that I didn't want to call myself a feminist because I didn't want to wear a label with a meaning that wasn't clear and stable and within my control. But that never meant I didn't care about participating in the struggle over the meaning of the word. It's a big struggle, and I say never surrender.

CORRECTION: I thought the activist students were law students, but now I'm seeing the word "undergraduate" in the first and second paragraphs and have deleted the references to law students. I hope it is true that law students know better than to engage in this maneuver and that they are leaning into strength and readying themselves to confront the roughness of the real world.

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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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Slate — at the behest of my son John — corrects a false accusation that Kavanaugh lied.

Here's a link to the tweet.

Here's the follow-up correction tweet:

On 9/12 I criticized @thinkprogress for a headline claiming that Kavanaugh "said" he'd overturn Roe. On Friday I made the same mistake, writing that Kavanaugh "claimed" he was legal to drink in HS. Thanks to @jaltcoh for catching my error.

That thanks @jaltcoh (my son) and links to the correction at Slate, where the article is still called "Kavanaugh Lied to the Judiciary Committee—Repeatedly."

Update, Sept. 30, 2018: This article originally said that Kavanaugh “claimed that his beer consumption in high school was legal because the drinking age in Maryland was 18.” Kavanaugh’s exact words were: “The drinking age, as I noted, was 18, so the seniors were legal, senior year in high school, people were legal to drink, and we—yeah, we drank beer.” These words could imply that his beer drinking at age 18 was legal, which would be false, since the drinking age in Maryland was raised to 21 before he turned 18. Alternatively, they could imply that his drinking at age 17 was understandable, if he was with 18-year-old seniors who were legal at the time. In keeping with the standard applied to others, it’s incorrect to report that Kavanaugh “claimed” his beer consumption that summer was legal. Therefore, the sentences have been removed.

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The outside prosecutor Rachel Mitchell opines that the evidence would not justify bringing criminal charges and does not even meet a preponderance-of-the-evidence standard.

According to the 5-page memo she sent to the Judiciary Committee Republicans, which WaPo got its hands on. The basis of the opinion is what a lot of Kavanaugh proponents have observed:

In the memo, Mitchell argued that Ford has not offered a consistent account of the alleged assault, including when exactly it occurred. Mitchell also noted that Ford did not identify Kavanaugh by name as her attacker in key pieces of evidence, including notes from sessions with her therapist — records that Ford’s lawyers declined to provide to the Senate Judiciary Committee....

[I]n the memo, Mitchell also argued that Ford “has no memory of key details of the night in question — details that could help corroborate her account,” nor has Ford given a consistent account of the alleged assault. Noting that Ford did not remember in what house the incident allegedly occurred, or how she left the gathering and got back home, Mitchell said “her inability to remember this detail raises significant questions.”

Mitchell also stressed that nobody who Ford has identified as having attended the gathering — including Mark Judge, Patrick Smyth and Leland (Ingham) Keyser — has been able to directly corroborate Ford’s allegations....

Mitchell notes that "There is no clear standard of proof for allegations made during the Senate’s confirmation process," but she is a prosecutor and she can only give an opinion from her point of view, from "the legal world, not the political world."

It is, of course, only her legal opinion, not The Legal Opinion in some grand sense, and she was chosen by the Republican Senators, who have their political goals and needs, even if she has none. And, really, we can't know if what she calls a legal opinion is really just that. She could be lying or unwittingly swayed by political or personal beliefs. We never know whether purported legal minds are really operating in some purely legal way (if such a thing is even possible).

The nominee, in the initial phase of the hearings, performed the usual theater of presenting himself as a judge who does nothing but decide cases according to the law. We in the audience of that theater may not really believe all that but think it's nevertheless close enough to get by, and it's only what every other nominee does, so we must suspend disbelief if we're going to have judges at all.

But when we see ourselves in this predicament, what can we do when we don't like the way the nominee leans? We could just accept the power of the President to make a nomination and demand that the Senate confirm as long as the nominee performs well in the usual theater of acting like a proper judge. The President won the election after all. That's a fact. But why defer there unless it's what you already want to do? Those who don't want a staunch conservative in the swing-vote-Kennedy seat want to resist. Trump didn't legitimately win, they might say — or: Obama didn't get deference when the Scalia seat opened up during his term.

Here's another thing that can be done when we don't like the leaning of a presidential nominee who adequately performs the Neutral Judge act in the initial political theater: Bring in something unrelated to his judicial work, something that makes him unacceptable, and allegations about something that happened in private long ago could do the trick.

But how good do these allegations need to be before they work? Rachel Mitchell can only say she has no idea. And if we are honest, shouldn't we admit that we're all drawn to the standard that gets us to the result we wanted before we ever heard about Christine Blasey Ford? I'd say no. There is one other factor: The short- and long-term interests of the 2 political parties. Republicans may fear that backing Kavanaugh now will hurt them. They might ruthlessly cut loose the damaged goods. Similarly, Democrats may see that voting Kavanaugh down will mollify their voters and energize conservatives in the midterm elections.

Maybe everyone's hoping that the FBI investigation will produce some very clear indications that Christine Blasey Ford is either lying or mistaken and the intensity of the partisan energy will dissipate. I don't think the FBI will save them. All the Senators have is one more week to worry about how to extricate themselves from this horrible trap they're caught in.

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"Governor Jerry Brown virtually admits it's a bad idea even while signing it: 'I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation.'"

"A terrible law, which will be bad for women and men. Laws and economics are not zero-sum; we can all lose," writes my son John, facebooking "California becomes first state to require women on corporate boards" (NBC).

Brown's statement continued: "Nevertheless, recent events in Washington, D.C. — and beyond — make it crystal clear that many are not getting the message." Is he talking about the Kavanaugh hearings?? Crystal clear. It's not even crystal clear what he's referring to. Spare me your California crystals.

Who will challenge this thing in court? What's the argument that it doesn't violate equal protection? It won't matter if no one sues. It seems easier to just put a woman on the board than to fight the law.

ADDED: A challenge could occur if the state tries to enforce the requirement against a company, and it's put in the defensive position. Maybe a flaw that is "fatal to [the law's] ultimate implementation" is that the state will never enforce it because then it would need to defend the law in court, and it can't. Passing the law is for show, and the law makes a show of requiring that corporations do something for show. And the corporations will probably put on the show, and that's how it's intended to work.

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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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"Anita Hill Says Kavanaugh Accuser Hearing 'Cannot Be Fair.'"

That's the headline at NPR (with audio). What's unfair about the Senate hearing? Hill says:

"In a real hearing and a real investigation, other witnesses would be called, including witnesses who could corroborate, witnesses who could explain the context of the experiences of Dr. Blasey Ford and Judge Kavanaugh during that period in their lives, as well as experts on sexual harassment and sexual assault."

I think Hill is using the idea of corroboration very broadly, since there are no other witnesses for the incident Blasey alleges nor are there witnesses to her contemporaneous hearsay about the incident. Hill is, I think, talking about witnesses who heard Blasey tell her story after Kavanaugh became a Supreme Court prospect, decades later, as well as general experts on how to understand and interpret the behavior and testimony of those who tell of sexual victimization.

Hill goes on to reject the Senate as the investigator. The Senate, she says, is not a "neutral body." And, speaking of her own experience before the Senate Judiciary Committee, there is "an inherent power imbalance."

The Senate has the constitutional role to decide whether to confirm the nominee. I resist the idea that it "cannot be fair." It must be fair, and if it is not, it still makes the decision. It makes a lot of decisions, and many of them are unfair or believed to be unfair. Yell and scream about that. I guess that's what people, including Hill, are doing. The Senators are responding to the political pressure, and whatever they do, they'll be criticized. Delay or don't delay. Vote yes or no. And there are lots of elections in 6 weeks, so we the people who think the Senate is unfair/fair will have our say.

NOTE: This is the fourth 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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"I know that lying to the Senate is a crime just like lying to the FBI, but, culturally and politically, people do think the FBI actually is the super-serious police..."

"... and since doing background checks is part of its portfolio, having the FBI do a seventh or add an addendum to the sixth background check of Brett Kavanaugh doesn’t seem crazy to me. Lots of people reject all of this and say that the GOP should stop the circus and just vote right now.... But if [Christine Blasey Ford] passes the threshold of sounding believable enough, it seems likely that the only choice will be calling the FBI."

Writes Jonah Goldberg in "Is It Time for the FBI?" (National Review). He puts a link on "super-serious police" and it goes to this September 18th tweet by his National Review colleague Charles C.W. Cooke:

The FBI is not The Super Serious Police. It’s an agency that is tasked with investing alleged violations of federal law, and even then with a limited remit. The Kavanaugh case, whatever the details, does not qualify. Feinstein knows this. Maybe most journalists do not.

Goldberg is citing that not for the stated proposition — "The FBI is not The Super Serious Police" — but for the background premise people believe the FBI is the super-serious police.

Here's Joe Biden to yell at you about what the FBI isn't:

My Democrat friends might want to consider this from then-Judiciary Committee Chairman JOE BIDEN (D-DE) In 1991: The ‘FBI Explicitly Does Not, In This Or Any Other Case Reach A Conclusion, Period’ pic.twitter.com/NvAI3RqevL

— Leader McConnell (@senatemajldr) September 25, 2018

I think the FBI has taken a lot of credibility hits lately. There's no good reason to palm off responsibility to them as though they're some sort of oracle of truth. Maybe you think there should be an authority that could be deferred to, but there isn't one, and, in any event, the authority in place in the confirmation of a Supreme Court nominee is the U.S. Senate. I know they're awful, partisan, and ridiculous, but it's their job and they need to step up to it and do what they can. And we can judge them as they do their constitutional work, and we've got a constitutional check on them coming right up in 6 weeks. It's only as good as it is, this democracy. But don't give up!

NOTE: This is the third 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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With the devious use of the disjunctive "or," Michael Avenatti raises a cloud of "gang rape" suspicion around Brett Kavanaugh.

I'm reading the shockingly titled Daily News article "Brett Kavanaugh and pals accused of gang rapes in high school, says lawyer Michael Avenatti."

“We are aware of significant evidence of multiple house parties in the Washington, D.C. area during the early 1980s during which Brett Kavanaugh, Mark Judge and others would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them,” Avenatti said in an email to Mike Davis, chief counsel for nominations for the Senate Judiciary Committee.

Gang rape??!!!

Yes, Avenatti wrote "gang rape" in his email to the Committee. And not just one gang rape — multiple gang rapes. What is the sudden, breakout hysteria?!

Avenatti did not disclose any details or identities of his witnesses.

All eyes on Avenatti. What a trickster this man is! Let's look at what he dropped on the public last night, just as we were hearing the weird new allegation that came out in The New Yorker. We'd barely had the chance to begin to process the story of a Yale college woman who, while seemingly too drunk to be sure if she was looking at a real penis or a fake one, saw Brett Kavanaugh pulling up his pants and heard — as she remembers it — somebody say his name. And then along came Avenatti to waggle his teaser at us. Boldface added:

Avenatti hinted at the nature of his allegations when he suggested to the Senate Judiciary Committee a series of questions to ask Kavanaugh.

One of his questions: “Did you ever target one or more women for sex or rape at a house party? Did you ever assist Mark Judge or others in doing so?”

Also, Avenatti suggested asking Kavanaugh: “Did you ever attend any house party during which a woman was gang raped or used for sex by multiple men?”

And: “Did you ever witness a line of men outside a bedroom at any house party where you understood a woman was in the bedroom being raped or taken advantage of?”

Avenatti also said Kavanaugh should be asked if he ever tried to prevent men from raping or taking advantage of women at any house party....

Are those the questions Avenatti used when collecting his witnesses — with "rape" never asked about independently from "sex" (or the strange locution "taken advantage of")?

Should Kavanaugh opponents welcome Avenatti's entrance onto this scene? I hear in him the echoes of a longstanding fight against fraternities and the accusation that they are a conspiracy of rapists. We got deeply into this issue back when Rolling Stone published its piece on the University of Virginia which turned out into a fiasco for those who sprung at an opportunity to describe a specific incident to stand in for all the bad behavior they wanted to alarm us about. Here we go again. I assume — but what do I know? — that there is horrible sex going on in the context of college drinking parties. I assume a lot of young women and men get hurt. They are used for sex and taken advantage of and — especially if you broadly define the word — raped.

You could cast aspersions on every man who ever belonged to a fraternity that held drinking parties. But should that serious problem be suddenly dumped on Brett Kavanaugh?

What Avenatti is doing resonates with something I wrote on September 18th: "The question that can destroy Brett Kavanaugh: Have you ever been so drunk you could not remember what happened?"

College happened. There is a drinking culture. It's tied to cheap, drunken sex. Can Kavanaugh assure us that he was never anywhere close to that?

Are you and everyone you care about free of the fraternity gang rape stink? If Kavanaugh falls, are you ready for the fall of every man who had drunken sex in college?

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"I've got to admit that if I had to say right now, who is more likely to be telling us what is closer to the truth — no stakes, no burden of proof, just who is more likely — I'd have to say her."

I wrote in the comments to a post that linked to a WaPo article and simply quoted Christine Blasely Ford's husband.

He'd said, "Her mind-set was, 'I’ve got this terrible secret.... What am I going to do with this secret?' She was like, 'I can’t deal with this. If he becomes the nominee, then I’m moving to another country. I cannot live in this country if he’s in the Supreme Court'... She wanted out."

I've reflected on why that quote tipped me to have the thought quoted in the post title and to want to reveal that. I've challenged myself: Am I a tool of the patriarchy? The husband says something, and now I believe?!

But I don't believe. I don't take anything at face value. I blog from a position I call "cruel neutrality," and I begin, always, with the prosaic awareness that people don't say everything they think, that they may sometimes outright lie but also almost always shape their telling of the truth, and that memory isn't a video recording that can be played but a mysterious process of the human brain, and that we are all blessedly human.

So I'll forgive all the commenters who misread what I wrote and fought me over the idea they got in their head when they read what I wrote. And let me quote a few commenters who were closer to getting what I was saying.

Henry said:

I've got to admit that if I had to say right now, who is more likely to be telling us what is closer to the truth — no stakes, no burden of proof, just who is more likely — I'd have to say her.

Your key phrase is "closer to".

Kavanaugh's problem is that he can't admit to anything. The most innocuous story will be seen as proof of her most serious allegations. "Closer to" could be "I was at a party and tripped and knocked her over and it was pretty embarrassing." That's closer to her story than "I have never done anything like what the accuser describes -- to her or to anyone" but it's still a long long long long way from "I'm an unsuccessful rapist."

Francisco D said:

I am going to give Althouse the benefit of the doubt.

She feels that Christine Blasey Ford is more likely telling the truth.

Althouse is describing an emotional reaction, nothing more. She is not indicating how she has processed the available evidence and what her thoughts on the matter are.

Walk don't run begins with something that isn't close to describing me at all, because it's about performing the role of juror after all the evidence has been presented, when I specifically hypothesized a requirement to suddenly answer a question when there has been no comprehensive presentation of evidence. At a trial, a burden of proof would apply and a defendant would be facing the consequence of a deprivation of liberty. That's not my hypothetical situation.

Anyway, here's how walk don't run begins:

I was a juror in a rape case some years ago. The case should never have never have been brought to court it had so many holes in it. During the deliberations that took a couple of days I outlined 7 aspects of the case that provided reasonable doubt. All of us agreed except one female juror who insisted that she had to convict the accused. Her explanation was that she had been raped and could not find her way not to convict the accused. The facts did not matter to her. It was all an understandable emotion. I think something similar is going on with Althouse.

But I see that walk don't run only says he/she thinks "something similar" is going on with me. It may be similar, but it's also different. I would never abuse the role of juror in a real legal proceeding. The question with Kavanaugh is whether he should be confirmed to a lifetime position as Supreme Court Justice, but even that is outside my hypothetical because that is what is at stake, and I said I'm telling you what I feel without regard to the stakes, and I'm only saying what I think is more likely.

Notice that I could have gone on to examine what I would do if there were never any more evidence than there is right now and it were my job to vote whether or not to confirm Kavanaugh. Nothing in my statement would prevent me from adding that I thought — given all the other evidence of his excellence and good character and the absence of other negative reports — what we've heard about what he may have done when he was 17 and his possibly false denials are not enough to justify a no vote.

Anyway, walk don't run goes on to say:

On the other hand, to give Althouse some slack, Kavanaugh seems just too good to be true - perfect scholar, perfect athlete, perfect coach, perfect husband, perfect father and perfect jurist. I wish he seemed more human with some failings and frailties like the rest of us. I don’t think Althouse likes or trusts that and that perfection strangely makes him less trustworthy in her eyes.

Yes, that's what I wanted to quote. Kavanaugh is vulnerable precisely because he's presented himself as good all the way through. Any hint of a stain wrecks his purity. He's the opposite of the man who nominated him, who's a crazy tie-dye pattern of stains. Nothing shows on that man. It's so annoying to his antagonists, who keep adding to the stain pattern and making it even harder to see any new problem. What has Trump really done that's so bad?, I ask myself from time to time. There are so many stupid things, like saying a hurricane is tremendously wet. I have trouble remembering what (if anything!) is supposed to be so awful. But with the wonderful paragon Kavanaugh, the accusation stands out like a red wine spill on the cream-colored carpet.

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