Brett Kavanaugh

All opinions herein expressed are subject to revision — probably the opinions of my sources as well as my own — but I’m not going to wait any longer.

That things like what is described in Ford’s letter “happened all the time” is, I’m sure, true. That it’s “all too consistent with stories” that people heard and their lived experience is also, I’m sure, true. But the questions is whether Brett Kavanaugh did something like this. Evidence that stuff like what he’s accused of happened to many people, or that prep-school guys like him always get away with things like this, is not evidence against Brett Kavanaugh. It is more like a cultural script in search of players to be cast in their respective roles later.

Evidence may yet be presented that incriminates Kavanaugh, and it may shift this conversation away from people generalizing from their own experiences. But until then, it is a dangerous thing to proceed toward a judgment, even a political judgment, based on prejudices such as “this thing happens all the time” and “it’s consistent with stories we know.” The sensation of finding archetypal victimizers and victims is what made false stories about Duke’s lacrosse players and the University of Virginia’s fraternity brothers go viral across the culture.

And this “he’s the type” style of accusation will not be used only on privileged men like Kavanaugh. It can, it has, and it will be used on anyone. Of course they’ll deny it. They always do.

Michael Brendan Dougherty. There’s also a counter-narrative that women use sex to get what they want and then leverage it to get even more as victims.  I know this to be true because I heard it from a woman, who believed it vigorously.


I’ve always been dissatisfied with the declaration, “Women don’t lie about rape.” Sure, some small number of women do affirmatively lie, but as a general matter, the word “lie” is an odd fit for a real world where perceptions differ and memories are malleable. And, by the way, this isn’t “right-wing denialism,” it’s just scientific fact.

… [I]f there isn’t any corroboration or external evidence outside of Christine Ford’s three-decades-old recollections, that’s simply not sufficient basis for derailing the nomination of an outstanding jurist — no matter how fiercely they’re believed.

David French.


I am in favor of withholding judgment on Kavanaugh and his accuser, and I was in favor of that even before it became moot (because he now would lose a forced vote on Thursday).

We’re going to hear the accuser and the accused, and that’s as it must be.

But as I think several steps forward, I can’t imagine any plausible good resolution. Brett Kavanaugh probably can’t disprove the accusations conclusively, but neither can the Democrats disprove the plausible suspicions about the “late hit”:

Unfortunately, with the midterms almost upon us, there is now no path to an outcome that both sides see as legitimate. Democrats can insist that the revelation of Ford’s story was not exquisitely timed to exactly the moment when it became impossible to confirm a different nominee before the elections. But they are in essentially the same position as Kavanaugh: Even if they are telling the truth, they have no way to provide convincing proof.

Megan McArdle (emphasis added).

I suspect that years from now we’ll still be divided into “I fiercely believed her” versus “I fiercely believed him” camps on this as on Anita Hill versus Clarence Thomas.

The hardest thing may be avoiding toxic presumptions or forcing the story into archetypes (see Michael Brendan Dougherty, above).

Rod Dreher, finishing a book tour in Italy, wrote a long blog while at the airport for his return flight. It’s not his best work, but he alluded to getting attacked on Twitter

for suggesting that the way people behave in high school, especially under the influence of drugs or alcohol, should not be a determinative factor in taking public office decades later. Someone said, “I hope you don’t have a daughter.”

I do have a daughter, [but] I also have sons, and I shudder to think what a teenage drunken encounter gone bad might do to their lives over three decades later, if somebody dredged it up. Or what a mere uncorroborated allegation of an unwanted sexual encounter might do to them ….

Just so. I know men are all monsters — a bias I find it all too easy to share — but too easy really is too easy.

Pre-publication update: An old Evangelical friend, (who at least used to be) a good man, is foaming at the mouth on Facebook with “let him who is without sin …” and a Facebook friend replies with lurid innuendo about the accuser.

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Monday 9/17/18

1

David French is much more sensible than Damon Linker on the current status of the Brett Kavanaugh nomination. Linker’s approach gives veto power to accusers whose lurid accusations are likelier false than true (by which I’m not pre-judging the current accusations — I’m talking about his rationale).

Neither would approve a Thursday vote, though.

2

I believe it was Ross Douthat who coined “if you don’t like the Religious Right, just wait ’till you see the irreligious right.” That’s panning out — though the “irreligion” is just one facet of communal breakdown:

[T]he different groups make about the same amount of money, which cuts against strict economic-anxiety explanations for Trumpism. But the churchgoers and nonchurchgoers differ more in social capital: The irreligious are less likely to have college degrees, less likely to be married and more likely to be divorced; they’re also less civically engaged, less satisfied with their neighborhoods and communities, and less trusting and optimistic in general.

This seems to support the argument, advanced by Tim Carney of the Washington Examiner among others, that support for populism correlates with a kind of communal breakdown, in which secularization is one variable among many leaving people feeling isolated and angry, and drawing them to the ersatz solidarity of white identity politics.

… only about a third of Trump’s 2016 voters are in church on a typical Sunday, and almost half attend seldom or not at all.

Ross Douthat

3

[T]he Deep State now feels confident enough to say … openly: the Deep State wants international conflict. The op-ed includes a bald-faced declaration to that effect:

Take foreign policy: in public and private, President Trump shows a preference for autocrats and dictators, such as President Vladimir Putin of Russia and North Korea’s leader, Kim Jong-Un . . .

Astute observers have noted, though, that the rest of the administration is operating on another track, one where countries like Russia are called out for meddling and punished accordingly. . .

The op-ed goes on to talk approvingly about how the Deep State has punished Russia against the President’s wishes, to the point of boasting about it:

He (President Trump) complained for weeks about senior staff members letting him get boxed into further confrontation with Russia, and he expressed frustration that the United States continued to impose sanctions on the country . . .

But his national security team knew better – such actions had to be taken, to hold Moscow accountable.

Here is the significance of the op-ed, not in what it reveals about President Trump but what it says about the Deep State itself, namely that it thrives on unnecessary and strategically counterproductive international conflicts. Those conflicts justify the trillion dollar “national security” budget off which the Deep State feeds, they provide the arenas in which the “national security team” builds its careers and power and they distract the public from our sorry military performance against the real threat, the threat of Fourth Generation war and the entities that wage it. They are, in short, bread for the Establishment and circuses for the citizens.

William S. Lind, The Deep State Speaks (emphasis added).

4

First, now that being censored on social media is a surefire way to win conservative clicks, it’s fair to assume that claims of censorship will proliferate, and not all of them will be true. Second, that doesn’t mean they’re all false, either. When it comes to the right, Silicon Valley almost certainly suffers from what the Valley used to call “epistemic closure” before the Valley embraced it. In that climate, “Sorry, mistake” isn’t likely to mollify anyone.

So the right has good reason for its suspicion, and no way to get good evidence that might rebut it. To see if Alex Jones had indeed been turned into Voldemort, I had to put my Facebook account — and a bit of my reputation — at risk. And even then, the fact that my account stayed up might simply show that the censors saw it as a trap that they were smart enough to avoid.

Bottom line: conservative concern about platform bias will continue to grow, and only radical transparency about platform standards and due process is likely to address that concern.

Stewart Baker (emphasis added), who tested reports that linking to Infowars from Facebook could get you suspended from the latter.

My personal “line I won’t cross” is somewhere between Breitbart and Infowars. I’ll occasionally visit the former, never knowingly visit the latter as if I might learn anything except how odious it is.

Where’s Facebook’s? Okay to link to Richard Spencer? Daily Stormer?

5

The McCarrick outcry is fading, it would appear, because his victims are adult men. Apparently sexual abuse of young men by an older man who is their ecclesiastical superior isn’t that big a deal.

Adult men make less instantly sympathetic victims than children, and the alleged incidents involving McCarrick are less headline-grabbingly horrifying than the episodes revealed by Pennsylvania’s recent grand jury report. But the church has more than a duty to ensure that minors aren’t victimized and should be sensitive to the fact that, where religious authority is exploited, the effects of sexual abuse can be especially devastating, as in Reading’s case.

Terry Mattingly, commenting on some fine reporting by Elizabeth Breunig under the Washington Post’s “Acts of Faith” rubric.

Yeah. Right. Winnowing out men who don’t want the priesthood so much that they’ll tolerate hanky-panky is a swell way of making sure you get lots of gay or sexually ambivalent priests who value the prestige of priesthood more than the truth of dogma and moral teaching.

6

Seriously, folks, if you are planning to withhold your regular tithe to your diocese for the time being, why not redirect it to the Norcia monks, who are the real deal? They are a light for the whole world. Please think about making a donation — or sign up for regular donations. You know how much I care about them, and esteem them. If you want to give confidently to help build a Catholic future you can believe in, the Monks of Norcia need your help.

Rod Dreher.

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Sunday 9/16/18

A Facebook friend from Texas posted this Friday:

We have a new priest coming our way. In this time of transition for actually 3 parishes, I thought the words of Flannery O’Connor appropriate:

It is easy for any child to find out the faults in a sermon on his way home from church each Sunday. It is impossible to find out the hidden love that makes a man, in spite of his intellectual limitations, his neuroticism, his lack of strength, give up his life to the service of God’s people, however bumblingly he may go about it.

Thanks, TJ.

Everything else I wrote was gossipy, uncharitable, or focused on the current vexations of Roman Catholicism. So I unwrote it.

Have a good Sunday.

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Friday Politics 9/14/18

1

I’m sure that if Brett Kavanaugh had not “misled the Senate under oath,” he’d have had Patrick Leahy’s vote for confirmation, but gosh durn it, he just had to mislead ’em.

What a bunch of preening jackasses we’ve elected (and thus, by definition, deserve)!

Speaking of which:

  • Sen. Cory Booker (D-N.J.) offered to sacrifice his political career in a move obviously calculated to serve his political career — boldly releasing “confidential” committee documents that had already been released and that did nothing to prove Kavanaugh’s unfitness.
  • Sen. Sheldon Whitehouse (D-R.I.) hinted darkly at the malignant influence of the Federalist Society — though it turned out that every member of the current Supreme Court, and Whitehouse himself, had participated in Federalist Society events.
  • Was Kavanaugh somehow personally responsible for the birth-control views of a plaintiff because the nominee made reference to it? This last charge — summarized by Sen. Kamala D. Harris (D-Calif.) as a “dog whistle going after birth control” — earned “Four Pinocchios” from The Post’s Fact Checker.

Each political side has chosen to live in a post-truth world. In one case, deceit serves the president’s interests and ego. In the other case, deceit serves progressive ideology. But in both instances, loyalty is proved by lies.

And by viciousness ….

 

2

As Hannah Arendt wrote back in the 1940s, the worst kind of one-party state “invariably replaces all first-rate talents, regardless of their sympathies, with those crackpots and fools whose lack of intelligence and creativity is still the best guarantee of their loyalty.”

Anne Applebaum, A Warning From Europe: The Worst Is Yet to Come. This long and well-informed Atlantic article has me rethinking some things.

 

3

[W]here American conservatism began to go wrong[:] The goal is not to stand athwart history and cry “Stop!”, as William F. Buckley put it. It’s to be part of the stream of history and say: slow it down a bit, will you?

Andrew Sullivan. There’s much more there. I even bought a book on his recommendation.

 

4

When cars were first introduced, no one had to buy one if they didn’t want one. Now that we have reordered our entire society around them, outside of a very small number of cities, the use of an automobile is really no longer an option.

Motor vehicles have changed our urban form to the point where very few people live within walking distance of their job, shopping, or other everyday activities. And for those who do, the walk to that place is likely to be unpleasant and unsafe, due to the way that cars have altered the design of our streets and neighborhoods.

We should think long and hard about the fact that, within several decades, we reordered our entire society, our built environment, and our way of life to serve this machine that we were told would serve us.

Jason Segedy

 

5

The Carolinas can take solace during hurricane Florence that FEMA will give them the stellar, “unsung-success” treatment it gave Puerto Rico under the watchful eye of Glorious Leader.

 

6

Whatever you may think about [John] Kerry, he emerges in these pages as a man who’s strong enough not to worry that in telling the truth about himself, he might look weak.

David Ignatius, reviewing Kerry’s memoir, Every Day Is Extra.

No comment, no contrast, no way.

 

7

One company last year reportedly sold “unfiltered, untreated, unsterilized spring water” for $6 a gallon.

Henry I. Miller

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Brief collection 9/13/18

1

Pope Francis has called a global meeting of Catholic bishops to discuss how to prevent sex abuse …

The Vatican statement said the topic of the gathering, scheduled for Feb. 21-24, would be the “prevention of abuse of minors and vulnerable adults.” It wasn’t clear whether the agenda would also include the disciplining of abusive clergy and of bishops who cover up or neglect abuse by priests under their authority.

Wall Street Journal

I think the Roman Church has had a fairly good idea how to reduce pedophilic child abuse since the report 14 years ago in the wake on the 2002 scandal.

But I don’t see much sign that it has made progress on homosexual predation on adolescents, seminarians and priests, or any progress at all at dropping the hammer on high-ranking enablers.

 

2

What will the Supreme Court look like when neither side has to walk on eggs to win the favor of the one in the middle? It will be a more conservative court, for sure, and maybe a more honest one. Justices may feel more free to say what they really think, and the public will ultimately judge the result by expressing itself in electoral politics. History does not stop in 2018.

Linda Greenhouse

Greenhouse is often outrageously biased even in her news reporting, not just in opinion pieces, but this one’s worth reading — with a grain of salt.

 

3

Public health experts dismiss [Critical Reviews in Toxicology, and Regulatory Toxicology and Pharmacology] as unreliable vanity journals. “These two journals exist to manufacture and disseminate scientific doubt,” says David Michaels, a professor at the George Washington University School of Public Health and the author of “Doubt Is Their Product,” a book about product defense science. “They provide the appearance of peer review and credibility to ‘product defense’ science — mercenary studies not designed to contribute to the scientific enterprise but to forestall public health and environmental protections and to defeat litigation. Corporations opposing public health or environmental regulations enter the rigged studies and questionable analyses published in these mercenary journals into regulatory proceedings or lawsuits to manufacture scientific uncertainty.”

Then, Michaels says, companies can say, “Look, the studies have conflicting conclusions, so there is too much scientific uncertainty to issue regulations to protect the public or to compensate victims.” ….

Paul D. Thacker, Scientists know plastics are dangerous. Why won’t the government say so?

I had no idea. The industry didn’t want me to have any idea. The “forensic” scientists (as in “‘forensic dating’ is the world’s oldest profession”) did their dirty duty.

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Potpourri 9/12/18

1

More and more, I wonder if the disgruntled senior Trump administration official who wrote the anonymous Op-Ed in The Times was actually representing a group — like a “Murder on the Orient Express” plotline where every senior Trump adviser was in on it ….

Thomas Friedman

 

2

There are far more political signs in the front lawns of my [Waco, TX] neighborhood — my middle-to-upper-middle-class, largely white neighborhood — than there were in the Presidential campaign of 2016, and every single one of them without exception reads: BETO.

Alan Jacobs. After that, this NYT story was no surprise. Excerpt (emphasis added):

For Mr. Cruz, the pressure has been steadily ratcheting up. On Saturday, Mick Mulvaney, the federal budget director, told Republican donors in New York that Mr. Cruz might lose re-election and suggested that the Texas senator was not likable enough.

Yes, not very likeable. Just ask the other 99 Senators. And water is powerful wet, too.

Graham Hillard at NRO opens with a chuckle (and then descends to incoherence):

Not his inability to act with any consistency on the subject of Donald Trump. Not his ill-timed spasms of political gamesmanship (as when he gave a 21-hour speech on the Senate floor against Obamacare). Not even his uncanny resemblance to Count Chocula. No, Ted Cruz’s worst offense against the American body politic has been his failure, thus far, to crush the senatorial hopes of one Robert Francis “Beto” O’Rourke ….

 

3

A crowdfunding website is trying to strong-arm Senator Susan Collins, the Republican from Maine, by giving more than $1 million to her 2020 opponent—unless she opposes Judge Kavanaugh. Donors are asked to make a financial pledge and then enter their credit-card information. As of Tuesday afternoon, 37,425 people had put down $1,041,878.

The fine print makes clear the quid pro quo: “Your card will only be charged if Senator Susan Collins votes for Kavanaugh’s confirmation to the Supreme Court.” To avoid the money bomb, all Ms. Collins must do is vote “no.”

It isn’t clear this is even legal. We’re all for citizens exercising their free-speech rights, including campaign donations, for or against political candidates. But federal law defines the crime of bribery as “corruptly” offering “anything of value” to a public official, including a Member of Congress, with the intent to “influence any official act.” The crowdfunders in this case are offering something of value—withholding funds from her opponent—in return for a Supreme Court confirmation vote.

“I have had three attorneys tell me that they think it is a clear violation of the federal law on bribery,” Ms. Collins says. “Actually, two told me that; one told me it’s extortion.”

She adds that her office hasn’t “made any kind of decision” about whether to refer the matter to prosecutors. But her astonishment at the strategy is clear: “It’s offensive. It’s of questionable legality. And it is extraordinary to me that people would want to participate in trying to essentially buy a Senator’s vote.”

Another pressure tactic, one Ms. Collins says she finds “incrediblyoffensive,” is “the out-of-state voicemails being left on the answering machines of my state offices.” Many of the messages are profane. “In one case—and we are going to turn this over to the police, but unfortunately, of course, the person didn’t leave a name or number—but they actually threatened to rape one of my young female staffers.”

Meanwhile, the next time progressives complain about the menace of money in politics, remind them of their failure to object to the crowdfunding bribe offered to Senator Collins.

Wall Street Journal Editorial Board, You Can’t Bribe Susan Collins.

I take no pleasure in repeating that rape threat, but it’s important to balance the ledger: trolling — even threats of violence and such — are not limited to the Right.

 

4

My experience vividly displayed how two countries, Belgium and Israel, view children. Israel treasures them. According to a 2018 report from the Organization of Economic Cooperation and Development, the fertility rate for Israeli women stands at a robust 3.1, nearly double the level of most European nations. The Belgian fertility rate is 1.7, well below the replacement rate of 2.1.

Israel’s high fertility is a complex phenomenon, but it seems to arise from cultural norms sustained by religion …

This norm of childbearing reflects a consensus among Israel’s communities. Collective beliefs about life, liberty and the pursuit of happiness inform each citizen’s personal choices, and inevitably affect the nation’s demography.

Nations that don’t recognize children as central to a good life will face serious economic consequences. Without enough young workers, aging societies will struggle to support the sick and elderly. These troubles await not only Belgium but also … the U.S.

My experience in Brussels was a glimpse into tomorrow. Despite the political challenges Israel faces, I’m bullish on its future. It celebrates life. Belgium, on the other hand, looks old and fading. As a Jewish sage once put it, “A child without parents is an orphan, but a nation without children is an orphan people.”

Robert C. Hamilton

 

5

For six days now, the New York Times has featured a story with the teaser As Lawyer, Kavanaugh Raised Doubts About Roe v. Wade, Leaked Email Shows, now because it ranks as one of a few “most popular.”

It just goes to show that you can sell nothinburgers with the right marketing.

 

6

I thought this was the Babylon Bee, but it’s real-life Pastor Mack Morris’s 15 minutes of fame:

The Rev. Mack Morris took a hold of an old Nike headband and a wristband, held them both up before a packed church, and cut them.

“I ain’t using that no more,” said Morris, the senior pastor at Woodridge Baptist Church in west Mobile during his weekly Sunday sermon.

“I’ve bought my last pair of Nike shoes,” Morris said.

The reason? Morris, during a sermon titled “The Storms of Life,” said it was in protest to the Oregon-based apparel company’s recent advertising campaign centered around Colin Kaepernick, the professional football player who was the first athlete to take a knee during the national anthem that triggered a firestorm of controversy that exists to this day ….

 

7

Stunt marriage proposals are an “abomination,” writes Shannon Proudfoot. “How does it feel being reduced to a mere audience member—one face in a gaping sea—staring up at a scene from your own life?” Go Shannon.

Micah Mattix, Prufrock for 9/12/18 (link not guaranteed to work for others).

Amen!

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Thoughts on Complete Education

Your work and career are a part of your life,” he said when I met with him and the Santa Fe president, Mark Roosevelt. “Education should prepare you for all of your life. It should make you a more thoughtful, reflective, self-possessed and authentic citizen, lover, partner, parent and member of the global economy.” I love that assessment — the precision, balance and sweep of it.

Frank Bruni, writing about St. John’s College (emphasis added). During his visit to the Santa Fe campus and his eavesdropping on some classes:

Three dynamics stood out.

The first was how articulate the students were. Something wonderful happens when you read this ambitiously and wallow in this many words. You become agile with them.

The second was the students’ focus. A group discussing Homer’s “Iliad” spent more than 10 minutes on the phrase — the idea — of someone having his “fill of weeping.” If digital devices and social media yank people from one trumpet blast to the next, St. John’s trains them to hold a note — to caress it, pull at it, see what it can withstand and what it’s worth.

The third dynamic was their humility. They weren’t wedded to their initial opinions. They weren’t allowed to be. And they moved not toward the best answer but toward better questions. In the “Iliad” and in life, is there any catharsis in revenge? Any resolution in death? Does grief end or just pause? Do wars?

Jack Isenberg, a senior, told me that St. John’s had taught him how much is unknowable. “We have to be comfortable in ambiguity,” he said.

What a gift. What an education.

(Emphasis added)

It’s now official: if I get huffy and drop the New York Times again, Frank Bruni is part of what I’d miss, along with his more conservative brethren Ross Douthat and David Brooks. (Heck, I already miss Brooks because he’s on “book leave” or some durn thing.)


I added emphasis to the preceding item for a reason:

The end of education for the religious-minded person might be seen, depending on his or her particular religion, as, say, the salvation of one’s soul, the glorification of God, the attainment of holiness or enlightenment, that is, something distinctly transcendent or spiritual. For the secular-minded person, it might be career preparation, the material betterment of humanity, self-fulfillment, that is, something distinctly temporal and material … [B]oth extremes and those in between consider education as primarily a means to these all-important ends. For this reason, they tend to characterize the transmission of knowledge and skills as the right and only model for education, with right answers, whether spiritually or materially regarded, and the most useful skills, aimed at the good of the soul or the good of the world, the only proper curriculum.

In this view, questions and questioning are important, but only when they give rise to and are aimed at definite answers. And liberal-arts disciplines, such as logic and literature, are generally a good thing to learn, but only when directed to securing desirable spiritual or worldly goods. In this way, the priority of answers, especially the right answers, and useful skills, in a school’s curriculum and pedagogy tends to render other types of questioning and other, not-so-useful skills obsolete. Open-ended questioning, speculative contemplation, and philosophical enquiry, and those skills that are deemed “useless,” such as a capacity for wonder, an appreciation of the true, the good, and the beautiful, and a grasp of the world as a whole, are either a waste of time and money, or just mere means to obtaining “right” answers and useful skills.

Thaddeus Kozinski, Questions Are Better Than Answers: On the Socratic Method.

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Tuesday, 9/11/18

Orthodoxy

1

As I’ve said before, it is my opinion that the collapse of religion is THE fundamental problem of Western Civilisation and without the restoration of religion we’re going nowhere. However unlike the Trads it is my opinion that an attempt to turn the clock back, and practice religion like it was practiced in the 1650’s is not going to work. Rather, the Christian religion is going to have to transform itself in someway if it is to successfully combat Modernity.

As for Christianity, Western Civilisation is really the civilisation built on basis of the Protestant and Catholic religions. Eastern Orthodoxy, while Christian is not of the West, and I would advise the Trads, those looking to turn the clock back to look at it, as it lacks the ability to change: It’s all tradition.

The Social Pathologist, a blog subtitled The Diseases of Modern Life as seen through the Secular Confessional.

I never really have comprehended the secularist case for the social importance of religion. I suppose it’s right, as secularists confessing it are making something of a declaration against interest. But whether I understand it or not, I appreciate people who don’t personally believe nevertheless giving Christianity its due.

So although I fault his word choice, “It’s all tradition” (we would say “it’s the faith once delivered to the Saints“), I especially appreciate his commendation of Orthodoxy to those not minded to (shudder) “innovate.”

We do consider “unchanging” a feature, not a bug.

I am skeptical, though, of the author’s claim that Protestantism is “a dying religion.” From “spiritual but not religious” to nuda scriptura, the desire to roll-your-own religion is powerful, and what earthly authority can pontificate that the rough beast, its hour come round at last, is not “Protestant,” strange fire and all?

When this somewhat wrong-headed fellow turns to Roman Cathoicism, I think he worth reading and considering, and that’s all I’m saying as I keep getting too deeply into the weeds of the current crisis in that tradition.

 

Shout-Out to an Adversary

2

I was unaware that a gay California legislator, who wants to outlaw “paid ‘conversion therapy,’ which purports to change a person’s sexual orientation,” pulled his own Bill at the last minute, though he had plenty of votes to pass it, because he seemed to think that the very vocal critics might be onto something and that he might make the Bill better (and, perhaps not incidentally, more resistant to First amendment challenge).

Perhaps the message is finally getting through: Wrongthink has some rights, and that it is justly embarrassing to pass a Bill, over objections of unconstitutionality, and then see it struck down as unconstitutional.

Kudos to Assemblyman Evan Low and to the Los Angeles Times for what reportedly was very fine coverage of the story.

 

SCOTUS

3

Not all California (or other) politicians are capable of the class Evan Low exhibited:

During Brett Kavanaugh’s confirmation hearings, [Kamala Harris] demanded to know whether the judge thought the president could legally politicize the Justice Department, for example by prosecuting his political enemies while going easy on his friends. Senator Harris would know more than a little about that: She wasted a great deal of time and a fair sum of Californians’ tax dollars illegally using her position as attorney general of California to attempt to bully nonprofits into giving up their donors lists. It was a transparent effort to target them for harassment and retaliation. That little jihad ultimately was ruled an unconstitutional violation of the First Amendment by the federal courts. Harris and her opposite number in New York State, Eric Schneiderman, did nothing but misuse their offices to harass their political rivals. (Well, in fairness, Schneiderman did take some time to beat women, if The New Yorker is to be believed, and resigned his office after three women accused him of abuse.) She misused her job like that was her job.

You know how this works: Liars think everybody is lying, cheaters think everybody else is a cheat, and self-serving political hacks who misuse their offices think that that’s just how the game is played, that everybody does it.

Kevin D. Williamson, The Caste System. He is absolutely right about abuse of the legal system for political purposes by Kamala Harris and Eric Schneiderman.

 

4

Whereas Trump is populist, intentionally divisive, anti-establishment, immoderate, and contemptuous of many of traditional norms of comity and civility, Kavanaugh is a product of the establishment, gets along with colleagues across the spectrum, respects precedent and plays by the rules. Any Republican president would have placed Kavanaugh on his short list. He has no associations with the Trump wing of the Republican Party. Trump nominated him in deference to the legal elite of the party, including the Federalist Society, many of whom are as concerned about Trump’s character and disposition as any Democrat.

The notion that any Trump nominee is illegitimate because he would shield Trump from hypothetical future subpoenas or prosecutions is belied by history. Nixon’s appointments voted against him in United States vs. Nixon, and Clinton’s appointments voted against him in Clinton vs. Jones. Kavanaugh has no closer relationship to Trump that those appointees did to the presidents who appointed them.

Michael W. McConnell. Eugene Volokh concurs.

 

5

I think I saw just once a passing reference to SCOTUS nominee Brett Kavanaugh’s high opinion of Merrick Garland, the Obama nominee whose “seat” the Republicans “stole” as the common trope has it.

Walter Olson confirms that it’s true and explains why the reference was fleeting.

I have no need of any other hypothesis.

 

6

Beyond wanting to restore its place as Asia’s dominant nation, China is seeking to become the most powerful and influential country in the world. Moreover, its economic success is allowing its authoritarian political system and mixed economic system to become a model for other countries. For the first time in decades, there is a worldwide debate about the best form of government and economic system.

Michael Morel. The authoritarianism of China’s government should not be underestimated. Two chilling stories, here and here.

 

Miscellany

7

Daniel Drezner satirizes the Anonymous New York Times Op-Ed.


Are major social media biased against conservatives?

I think maybe they are, functionally if not ideologically. But government regulation to eradicate bias is a cure worse than the disease.

That’s all I wanted to say.


I feel rather sorry for any prominent person named “T.J. McCarrick” even if the disgraced Cardinal‘s middle initial is “E.”

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Political Potpourri, 9/10/18

The Good

1

Heather Mac Donald, in “The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture,” notes that, “as of early 2018, 79 judges had issued rulings against schools’ rape trial procedures” adopted in conformity with the Obama administration’s dictates.

She says a 2006 University of Virginia survey found “that only 23 percent of the subjects whom the survey characterized as rape victims felt that they had been raped” …

Mac Donald notes that campus sexual-assault policies often assign “wildly asymmetrical responsibilities and liabilities.” In campuses’ alcohol-saturated hookup culture, men are assigned the Victorian role as guardians of frail females’ virtue: If he and she are drunk, she typically is absolved of agency and he is accountable for both of their behaviors. Yet, contradictorily, a core tenet of academic progressivism is that the differences between men and women are not innate, they are “socially constructed,” having nothing to do with biology. Never mind various cultures’ centuries of experience with laws and courtship rituals developed to tame the male libido.

George Will, defending Besty DeVos’s revision of Department of Education rules on handling of campus sexual assault complaints — which have been widely mischaracterized so egregiously that “bad faith” is almost the only explanation.

 

2

I asked the senator from Kentucky if his record on judicial appointments, including the decision to hold open the seat vacated after Scalia’s untimely death in February 2016 until after the presidential election was the most important part of his legacy as a senator. “I think it’s the most consequential series of things that I’ve done that have the longest impact on the country,” he answered. “In the legislative process,” he continued, “there’s not much you can do all by yourself. The one thing the majority leader can do that no one else can do is the schedule, what you will do or what you will not do. I think the decision not to fill the Scalia vacancy was the most consequential decision of my career. And I think the follow-up on that, to not only fill the Supreme Court vacancies, but put in place men and women [on the federal courts of appeals] who believe that the job is to interpret the law into as many places as we can, particularly at the circuit court level, for as long as we’re in the majority is the most important thing I will have been involved in in my career.”

Hugh Hewitt, Mitch McConnell has saved the Constitution.

For the record:

  1. I’m deeply ambivalent about the precedent of sitting on a SCOTUS nominee without hearings. It doesn’t pass a smell test even if it’s not unlawful.
  2. But I’m grateful for the quality of Trump’s judicial nominees and that their judicial philosophies* are more congruent with my own than Merrick Garland’s presumably** is.
  3. “Saved the Constitution” is hyperbole, but the stakes were high, and the tendency to see SCOTUS nominees as having “an agenda” is a sad symptom of the how the court is perceived, with some justification.

 

3

The truth is that “settled law” is just a euphemism that jurists and legal scholars use to refer to Supreme Court precedent that is indeed binding – but only until a majority of the justices decide that it should be overruled. In the 2003 e-mail, Kavanaugh was largely right to say that the Supreme Court “can always overrule its precedent.” And that’s a good thing. The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.

Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003), which has since become something of an iconic decision.

Ilya Somin (emphasis added). Somin doesn’t mention boring but binding precedent upholding anti-sodomy laws years before Bowers v. Hardwick:

The first challenge to a sodomy law to reach the U.S. Supreme court was Doe v. Commonwealth Attorney of Richmond in 1976. That case challenged Virginia’s sodomy law as a violation of the right to privacy. For technical reasons, the Supreme Court was required to consider the appeal of this decision upholding the law (in most circumstances, the Court only hears cases it selects). Although the Court accepted neither written nor oral arguments, its memorandum upholding the law is its first decision in a sodomy challenge.

ACLU, Getting Rid of Sodomy Laws. The one sentence summary affirmation was binding authority, and it meant in effect that there wasn’t enough merit to the case against sodomy laws to waste any time explaining why.

My own position long was that all jurisdictions should repeal sodomy laws, but I couldn’t find an acceptable constitutional rationale (a free-floating right of privacy just doesn’t cut it for me) for striking them down.

 

The Bad

4

Jay Sekulow, tried to argue to Robert Mueller that Trump could not be asked to give an interview because he is a compulsive liar. They literally explained to Mueller how they conducted a mock interview with Trump, and he was so unable to tell the truth that they considered him mentally disqualified from testifying:

Jay Sekulow went to Mueller’s office and re-enacted the mock interview. Their goal: to argue that Trump couldn’t possibly testify because he was incapable of telling the truth.

“He just made something up. That’s his nature,” Dowd said to Mueller.

It seems somehow unfair to let somebody remain on the job as president because he’s such a compulsive liar he can’t be allowed to testify under oath.

Jonathan Chait

 

5

Publicity is bad when it attracts the dogged scrutiny of a special counsel along the lines of Robert S. Mueller III. The man isn’t perfect. But he is deeply experienced and impervious to distractions. Trump has loosed a rabid and foaming Rudolph W. Giuliani on Mueller, to no more effect than a Pekingese yipping at a Greyhound bus. With his patrician wealth, his Bronze Star and his sterling résumé, Mueller neither wants nor fears anything Trump can bring.

On the other hand, Mueller has obtained certain things that, I’d wager, lie at or near the root of Trump’s mania. No, not the sordid details of a porn-star payoff. Trump has been known to spill dirt on himself to the tabloids just to stroke his own ego. He could be the emoji for shamelessness.

I’m talking about Trump’s bank records , turned over last year by Deutsche Bank, which also coughed up $630 million in fines in 2017 to settle charges of participating in a $10 billion Russian money-laundering scheme. And I’m talking about the immunized testimony of Trump’s longtime chief financial officer Allen Weisselberg . If anyone knows the details of money (Russian or otherwise, licit or not) moving through Trump’s privately held businesses, it’s this guy. And I’m talking about Trump’s personal and corporate tax returns, the ones he has been so determined to keep private, which Mueller almost certainly possesses .

This is the forest, I’ll bet, from which the president’s increasingly nutty behavior is being shaken.

David Von Drehle. Von Drehle also speculates that Jared Kushiner wrote The Anonymous Op-Ed, as even Jared and Ivanka need an exit strategy.

 

6

In nations that have known the horror of dictatorship or foreign occupation, there are often long traditions of what Poland’s national poet once called “patriotic treason” …

In occupied countries, large public events can spontaneously take on political overtones, too …

I am listing all these distant foreign events because at the moment they have strange echoes in Washington. Sen. John McCain’s funeral felt like one of those spontaneous political events. As in a dictatorship, people spoke in code: President Trump’s name was not mentioned, yet everybody understood that praise for McCain, a symbol of the dying values of the old Republican Party, was also criticism of the authoritarian populist in the White House …

There can be only one explanation for this kind of behavior: White House officials, and many others in Washington, really do not feel they are living in a fully legal state ….

Leading members of Congress might resist invoking the 25th Amendment, which would of course be described by Trump’s supporters as a “Cabinet coup.” The mob — not the literal, physical street mob, but the online mob that has replaced it — would seek revenge. There may not be any presidential goons, but any senior official who signs his or her name to a call for impeachment or removal will certainly be subjected to waves of hatred on social media, starting with a denunciation from the president. Recriminations will follow on Fox News, along with a smear campaign, a doxing campaign, attacks on the target’s family and perhaps worse. It is possible we have underestimated the degree to which our political culture has already become more authoritarian.

Anne Applebaum, Washington feels like the capital of an occupied country. This rang very true to me.

 

Elsewhere

7

In the wake of reports about his predecessor’s systematically harassing seminarians in a beach house, Cardinal Wuerl suggested that it was nothing that couldn’t be solved with more vacation time.

… Wuerl has announced a six-week “season of healing.” No penitence, no accountability. Just an announcement that in six weeks, he expects his image to be rehabbed, and everyone else will have to move on. You weren’t healed during my season of healing? That’s on you, bub. As for me, it’s time for another retreat with the lads.

Michael Brendan Dougherty

Footnote

* I say “philosophies” in the plural because Brett Kavanaugh says he is an “originalist” while others insist he’s a “textualist.”

** I say “presumably” because we never got the hearings that would have identified his reportedly moderate philosophy.

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Observations on Orthodoxy

The Eastern Orthodox Church might be called a little stingy in its acknowledging of anyone as a theologian. Strictly speaking, our church recognizes but three—just three saints whose names include that epithet. They are Saint John the Theologian (also called John the Evangelist), Saint Gregory the Theologian (also called Gregory of Nazianzus, and one of the Cappadocian Fathers), and Saint Symeon the New Theologian. As it happens, each of these men wrote their theologies in poetry, highlighting to some degree the rabbinic understanding that true theology is always parabolic, as the One of whom we speak extends beyond comprehension, irreducible.

One of the discoveries that led me finally to embrace the eastern church was its disposition toward biblical scripture. The church of my youth approached the scriptures as if they were both knowable and reducible to proposition; each verse was approached as a fixed utterance, dictated, word by word, by God to certain men; the scriptures were understood to be God’s words precisely, and they were understood to be the revelation, as such. On the other hand, Orthodoxy observes that what God revealed to these men was but a glimpse of himself, and that those men thereafter employed their own words to offer up what might be better understood as a witness to the revelation. That is to say, these writers beheld a mystical vision, and sought to share it by whatever means they could muster. What we make of their textual witness is, of course, another matter.

Poet Scott Cairns, in Image Journal.

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