Tuesday, October 2, 2018

How We Know Nathan Robinson is Lying

In a recent piece in his journal "Current Affairs," Nathan Robinson shows that he is a talented writer and debater. He also shows that he is willing to employ his talents to be deceptive; in this case, to claim that Brett Kavanaugh is a "serial liar." Since he makes the argument in such depth and with such a superficial air of plausibility, it is worth spending some time showing why it is wrong.
To set up his case, Robinson admits that there is no evidence other than Ford's word to support her case. "Someone strongly committed to due process," he writes, "might think the allegation extremely weak." But, he continues, prosecuting sexual assault would be almost impossible if we used this standard of evidence; therefore, we have to consider the case based solely on the testimony provided by Ford and Kavanaugh.

Robinson has apparently attended law school, so one would expect him to know that rape rarely comes down to a simple "he said, she said" dichotomy. If there is sexual contact, there is physical evidence. Even if there isn't, however, there is often some circumstantial evidence to support one side or the other. In the Ford case, that evidence might include: was Kavanaugh actually at the event where she claimed to be assaulted? Did anyone witness Kavanaugh and Mark Judge pushing Ford into a bedroom? Did anyone notice that the three of them were absent for some time? Did anyone notice Ford's reapparance? Did she appear distressed? Did she tell anyone, even privately, of what happened?

Of course, the answer to all of these questions is either outright "no" or "no one can recall any such thing." That makes for an extremely weak case. Likely it would have been much stronger if Ford had made the accusation closer to the alleged event. One can understand why she might not have done so, but it puts her in a difficult position to prove her case.

Robinson attempts in spite of these obstacles. His method is to dissect Kavanaugh's statement and his interview responses, where he claims to find overwhelming evidence of lying. Let's start with the question of Kavanaugh's character, which, according to Robinson, he himself made "a central part of his defense and his argument for why Ford should not be believed." Before we get into specifics, let's ask: what else did Kavanaugh have to go on? If Ford had accused him of sexual assault at a specific place and time, he could have discussed the events in detail to attempt to refute them. Since, however, she has not identified either a time or a place, there is no way for him to respond to specifics. All he can say is that sexual assault was out of character for him at the time.

I think the evidence overwhelmingly supports him on this. Robinson does not. Admittedly, he does not attempt to refute any of Kavanaugh's statements about himself: that he was a very good student, a member of the football, a churchgoer, had numerous close female friends, and mowed lawns to make money. None of that, of course, proves that Kavanaugh is innocent, but then, there is no way to prove innocence, especially against such a vaguely worded accusation. Instead, Robinson suggests that this is just a charade and spends considerable effort trying to suggest that there was a dark underside to Kavanaugh's youth.

I agree with Robinson on one point: Kavanaugh was evasive about questions surrounding his drinking and making sexual innuendo. He did not want the discussion to center around the embarrassing things he did as a teenager. Why would he? If drinking and making jokes about sex were prima facie signs of a potential sexual assaulter, hardly any male in the country would want to go into detail about that. If this had been a court of law, a judge might have ruled on the pertinence of such questions. In my opinion, they are no more relevant than it is when a lawyer grills a rape victim about her clothes, drinking habits, and past sexual partners. None of those things excuses someone from raping her; similarly, none of the things that Kavanaugh (likely) did indicate that he sexually assaulted Christine Ford.

Robinson also objects to Kavanaugh's citing of his spotless career record as evidence: "'If this allegation was true why didn’t it become a scandal earlier in my career?' is what we might call the 'Cosby defense' or the 'Weinstein defense.'" Which is true, but it ignores one big problem: Cosby and Weinstein were habitual offenders throughout their lives. Since no one has yet to come forward to accuse Kavanaugh of any sexual misconduct since he became an adult, it is indeed fair for him to cite this in his own support. Even if, again, it is not dispositive, surely it counts in his favour. If his record had been littered with accusations of sexual assault, however minor, then Ford's claim would ring more true, and no doubt everyone would weigh it against Kavanaugh.

The most dishonest part of Robinson's article is the first section, when he attacks Kavanaugh on what little specifics there are of the alleged event. First, he criticizes Kavanaugh for restricting the analysis of his calendar to weekends. I think that is at least a reasonable limiting assumption on Kavanaugh's part. If Ford is unable to specify a date, it is not incumbent on him to go through every day to prove that none of them were possible. Assuming he didn't commit the act in question, he would have no advance knowledge of when it could have happened and no particular incentive to scourge his source for evidence that he knew he would not find.

"Kavanaugh says that he never attended any event like this," write Robinson. "Like what, though?" Like what, indeed? Again, there is nothing to tell us much about the event, which may not even occurred. If Kavanaugh knew he didn't commit sexual assault, indeed had no recollection of being at an event with Ford at all, clearly he did not attend an event like the one she described. To criticize Kavanaugh for not being more precise when his accuser wasn't even sure what year the alleged assault occurred in is absurd. Sure, if he was guilty, he might have used a line like this to evade the question. If he wasn't guilty, he would use that line to signify as clearly as possible that he could not have been. There is no way to assume one or the other from this statement.

But was he guilty? Robinson makes a big deal of finding a night when Kavanaugh attended a gathering that included three of the boys named in the accusation. There was one conspicuous person missing, however: Ford's friend Leland Ingham Keyser. Kavanaugh cited Keyser's formal statement: "All the witnesses who were there say it didn’t happen. Ms. Keyser’s her longtime friend, said she never saw me at a party with or without Dr. Ford." Robinson follows up this quotation with (caps in original) "THIS IS A BALD-FACED LIE." He is trying to make a fine distinction between Keyser's not remembering such an event and a denial that the event took place. How do we know it is a fine distinction? Because later in the same discussion, he admits that "this may seem like hair-splitting."

It does indeed. According to Robinson, "Keyser never said it 'didn’t happen.' She said she didn’t remember being at a party with him and doesn’t know him." Well, if Ford said that Leland was at the party, and Leland emphatically denies recollection of any such event, that seems pretty close to saying it didn't happen. For Robinson to twist Kavanaugh's characterization of Keyser's statement into an all-caps BALD-FACED LIE is either itself a lie or a sign that Robinson has a tenuous grasp on the nuances of speech. Based on his writing, I do not believe the latter to be the case, but I will refrain from drawing conclusions.

Robinson also makes a point of saying that Keyser "believes Ford's accusation" [italics in the original]. Based on his source, which is a Washington Post article, it is difficult to tell what this actually means. The article simply says "she was close friends with Ford and that she believes Ford’s allegation." Obviously, she does not "believe Ford's allegation" in its literal sense, because she said she does not know Kavanaugh (that much is unambiguous) and does not recall being at a gathering where he was present. It could mean that Keyser believes Ford's accusation against Kavanaugh; or it could mean that Keyser believes Ford was assaulted by someone; or it could just be a general statement in support of her friend. In any case, she did not communicate her belief to the Senate and it would not have carried any weight if she had, since she herself admits that she was not present and any such gathering.

I won't spend any time on the geography lesson that Robinson provides about the D.C. area, other than saying that, even in his estimation, at most Kavanaugh "massaged facts" to make the accusation seem implausible. Again, there is no specific accusation, all he can do is show that it was implausible. You can't refute an accusation that is so general.

This is also a good place to bring up Robinson's absurd allegation that Kavanaugh "attempted to portray a highly esteemed doctor as a crazy person, by  consistently misrepresenting the evidence." This is, in fact, exactly the contrary of the case (even leaving aside the dubious claim that Kavanaugh misrepresented the evidence). Kavanaugh repeatedly stated that he believed that Ford had been assaulted, only that it had not been by him. This is far more generous that Robinson's own analysis of Kavanaugh (a highly esteemed judge, by the way), whom he accuses not only of perjury but showing "total contempt for his vow to tell the truth."

Robinson ends his article with a note: "I am certain I got a small fact wrong here and there over the course of this article. If you see a little stack of corrections appear at the bottom, do not be surprised. I did the best I could and have sources for everything, but it’s possible I misinterpreted something." It is particularly striking how he can excuse himself in advance from errors of fact or interpretation while still claiming that any misstatements by Kavanaugh are the result of simple lying. Let me just note, then, one additional case where Robinson himself gets caught in a lie. He quotes Kavanaugh's statement that "until last week, no one ever accused me of any kind of sexual misconduct," and then adds a snide comment: "Note here a small bonus lie: Ford alerted the U.S. Senate about her allegation in July, not 'last week.'" I assume that someone who has spent as much time on this as Robinson would know that Ford sent a letter to Dianne Feinstein, not to the Senate, in July, and that the accusation was only made public the week prior to Kavanaugh's testimony. But why let that get in the way of a chance to make another reckless accusation?

Naturally, Robinson finds Ford's testimony much more credible. He was probably unaware at the time he was writing of the memo by sex crimes prosecutor Rachel Mitchell outlining the inconsistencies in Ford's story, particularly about the date, location, and subject of the assault. One of the important things about this memo is that Mitchell examines Ford's statements over time, whereas Robinson appears to be relying entirely on her testimony before the Senate Judicial Committee. This is significant because of something that Kavanaugh noted at the start of his testimony: that he wrote it himself, without any outside input. The likelihood is that Ford's statement was either drafted or edited by Democratic staffers, or at the very least included information that they provided her. It is therefore less surprising that she may have presented a very convincing case, or that Kavanaugh, who wrote his statement in a single afternoon and evening, might have made mistakes. Robinson makes no mention of this difference. 
Robinson concludes with a broader question: "What does it say about this country that this is the state of our discourse?" I'm not sure what the case in general says, but I am sure what his article says: that intellectuals on the Left are incapable or unwilling to make reasonable, nuanced judgments. These are the people who habitually accuse conservatives of seeing the world in black and white, yet Robinson is unable to see Kavanaugh as anything other than a liar.

It may be argued that Robinson's conclusion is based solely on his dispassionate analysis of Kavanaugh's testimony. I think the present article demonstrates that his analysis is the opposite of dispassionate. Moreover, we know that Robinson was convinced that Kavanaugh was a very bad man even before the sexual assault was made public. In an article from August 6th, he characterizes Kavanaugh as "dishonest" as well as "biased, illogical, [and] morally repugnant." With that background, it is no wonder that he approached Kavanaugh's testimony with scepticism if not simple prejudice. He had already decided that Kavanaugh was a bad person, so it was easy for him to convince himself, based on the testimony, that he must be lying.

Obviously, it was not just Robinson who pre-judged Kavanaugh. Not only do we have the evidence of numerous Democratic Senators announcing their refusal to approve Kavanaugh within hours or even minutes after hearing of his nomination, we also have the spectacle of Cory Booker saying that to approve Kavanaugh's nomination would be "complicit in the evil," and Elizabeth Warren, speaking on the same subject, arguing that "We are on the moral side of history."  These accusations came before the sexual assault was made public and therefore are based solely on Kavanaugh's rulings as a judge and his stated opinions on the role of the judiciary.

This, then, is the state of our public discourse: that Democratic Senators – not talk show hosts or opinion columnists, but the actual highest-ranking elected Democratic officials now in office – can seriously call a judge "evil" and not have any of their colleagues object. Warren stated that the Kavanaugh confirmation "has nothing to do with politics" but with "who we are as moral beings." Thus, they are unwilling to accept the fact that there are differing judicial philosophies in the country and instead have cast the matter as one of right vs. wrong. Like Nathan Robinson, they had made up their minds before the hearing began. Christine Ford's accusation provides them a plausible pretext for voting against Kavanaugh, but they needed no additional reason to do so.