Kavanaugh hearings, wrong question

Why Struggle Over the Answer if the Question is Wrong?

Before you roll your eyes about yet another Kavanaugh piece, I promise this one is different than anything you’ve read. You’re going to learn something new.

If you’ve followed the supreme court confirmation drama, you may have noticed some excuses here and there. Did you use what you’ve learned from my previous pieces? There was one I found particularly interesting: the idea that Kavanaugh ought to be presumed innocent of assaulting Christine Blasey Ford unless proven guilty. Many of the “Yes” voting senators cited this as part of their reasoning.

But Democrat Joe Biden said, “You’ve got to start off with the presumption that at least the essence of what [Ford is] talking about is real.” This summarizes pretty well a key feature of the Democrats’ position.

Which do you agree with? The presumption of guilt, or the presumption of innocence? You probably know that the presumption of innocence is one of the principles of our constitution and a critical part of civil rights. Most of the country rallied around this polarizing question.

And, unfortunately, those people failed to think critically.

It’s the wrong question.

Constitutionally speaking, the presumption of innocence applies those accused of a crime in a court of law, in which Kavanaugh was not. He was in a special kind of job interview, and if you’re a manager, I bet you assume your candidate cannot do the job (even though they say they can), and you make them prove it to you.

That’s a completely appropriate presumption of guilt that happens every day. You may even keep them on a ninety-day probation period during which they must prove themselves.

The Republican presumption of innocence argument was an example of “Taking Out of Context,” which I covered previously. The truth of the principle was taken out of its appropriate context and misapplied in another one.

However, Biden’s stance asserts that hearsay ought to be accepted as at least in part true with merely circumstantial, not hard evidence. On its own, a weak position, but obviously pointing toward the need for a thorough investigation, which the GOP would not allow.

That was the place where the Democrats screwed up. As soon as they knew the investigation would be limited, they needed to pivot and reframe the argument. While I’m happy that awareness of sexual assault is growing, and the concept of “We believe survivors” is a positive one, logically speaking it was irrelevant to Kavanaugh.

Yet, it divided the country in a false “Us vs. Them” battle.

It’s a lower form of reasoning to frame the issue about believing Christine Blasey Ford or not. Probably every person in government did something as a teen that was, at best, stupid, and at worst, criminal. The question is what did they learn from it, and who are they now?

As many observed, Kavanaugh’s angry, defensive, and childish behavior was enough evidence to make a case against him. Where was this argument from the Democrats, who invested their energy instead in trying to prove something he did as a teenager?

While they were at it, they could have also put a stop to tirades from Republicans like Lindsey Graham, who used time that was supposed to be for questioning Kavanaugh to grandstand with his own outrage. (That deflection I call “The Hair Trigger.”) This is analogous to an attorney using time with a witness to read an additional opening statement into the record. Aren’t a lot of these senators lawyers for God’s sake? Where is their appreciation for a good, clean debate?

So in summary, the Republicans rallied around a powerful excuse, yes. But the Democrats lacked the spine to call them on it, and failed to powerfully reframe the conversation about what was most relevant and provable. One golden opportunity was when Senator Klobuchar (D) asked Kavanaugh if he’d ever blacked out, and Kavanaugh hands the question back to her with “Have you?” …twice.

This excuse is what I call The Turnabout, and it’s one of the more immature ones, I think you’ll agree. Klobuchar meekly and politely responds, stumbling with surprise perhaps, “Could you answer the question, judge, so you uh, that’s not happened–is that your answer?” She sounds like a ten-year old asking for an extra cookie. But what if she made a scene like Senator Graham did, only using some actual logic?

“Excuse me, Judge Kavanaugh, are you asking me, a sitting senator, the question that you’re here to answer? Are you confused as to what the purpose of this hearing is? Because it seems to me that despite the fact that you’re a sitting judge with decades of experience presiding over witness testimony, depositions, and cross-examinations, you think it’s appropriate to inquire about my drinking habits before answering about your own. Did you think we were on a date, Mr. Kavanaugh? So now I have a second question, ‘What were you thinking when you asked me that?’

I can’t imagine that you don’t know how inappropriate that was, so my third question is, ‘Why are you not answering the first question?’ You will now answer all three questions without any additional equivocation. This is already behavior unbecoming of any judge, much less that of a supreme court justice. You’ve got a long way to go to convince me that you have the maturity for this position, and regardless of what you did as a teen, the greater issue is whether you still act like one, which I think we all can agree, you just did.”

This is what Senator Elizabeth Warren might have said, and I would have paid money to see it. Instead, Kavanaugh later made a very weak apology which Klobuchar very weakly accepted, so they all could return to discussing the far more abstract and irresolvable question of what he did thirty-five years ago.

I often wonder why politicians are not more direct with each other, especially Democrats with their counterparts, and here’s a possible reason why. Back when Al Franken was still a senator (June 1, 2017), he appeared on The Daily Show with Trevor Noah. Something fascinating happened at the end of the interview that I think is hugely significant:

Noah: “Oftentimes I hear politicians in America saying, We have to get along. We are friends. We work with each other…’ But are you really friends? Do you see these people as friends when you’re fundamentally opposed?”

Franken: “You have to be collegial, you have to be friendly. It’s a workplace. There are 100 senators.”

Noah: “Oh, you don’t have to be friends at work.”


Franken: “You have to be collegial, you can’t be a toxic coworker…to get things done… your word has to be good…and you have to be collegial. It is like a small town…there’s no percentage of making enemies.”

Truth or excuse? What do you think?

Want to learn how to identify and cut through excuses like a pro? Learn more about becoming a Clear and Open Member.

1 Comment

  1. If this Coaching, Consulting, Mentoring, Sensei thing ends up not working out for you, perhaps a great career as a strategist for a group of politicians who cannot lead their way out of a paper bag. Senator Klobuchar could use your help. Want her number? 😉
    But seriously, your incisive ability to identify the excuses in that whole … “experience”… is great, Josef. Thanks for the insight.
    Finally, when being collegial gets in the way or actively subverts the efforts to defeat poorly crafted positions, it’s time to rethink. When those positions have the gravitas of SCOTUS hiring, or even business decisions, the stakes are so high we cannot afford the luxury of being afraid to piss someone off. Piss them off, for crying out loud.
    *Do we want to be better, or not?*

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment