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About the After-Hearing…

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David French opened his reaction piece to this morning’s spectacle with an observation that really set me thinking:

Let’s first begin with obvious points, points I’ve made time and time again. Emotion isn’t evidence. But emotion has power.

Emotion has a lot of power.  I have witnessed it first hand.  I have seen it sway juries when I sat on them.  But here is the thing, as I argued in my reaction piece to having served on a jury, our nation relies on the rule of law, not the whims of men, women and their emotions.  And so in analyzing the outcome of the testimony given today we really need to look at two things: 1) Was the evidence meter moved? and, 2) Was the emotion meter moved?

FYI, I did not watch the hearing today.  This was mostly true because I have to make a living and I was on the road through 90% of the thing.  But I would also much rather read testimony than hear it so that I can separate emotion from evidence.  Yes, you need to hear and see people to judge if they are lying or not, but only in a pure he said/he(she) said situation which I do not view this as.  You see, Dr. Blassey is so short on particulars and so absent corroboration not only of the facts, but of her character, while Judge Kavanaugh has been through so much vetting and offered so much corroboration that as an evidentiary matter, I was going to take his word at face value.  Dr. Blassey has all the sympathy I can muster.  I do not doubt that she is a good person that has been deeply aggrieved, but absent details and corroboration, her testimony simply lacks weight.

And so, as best as I can tell, the evidence meter did not move at all based on what transpired in the hearing room today.  The emotion meter; however, moved in every possible direction with great amplitude.  Based on my reading of the aftermath, those who had already made up their mind are now more deeply entrenched than they were, and those in the middle got nothing out of it if they are honest about the evidence, but they most certainly took a ride on an emotional roller coaster.  And so the question becomes, “How would I advise a Senator to vote?”

You see, unlike in a criminal trial a Senator has to consider both the evidence and the emotion.  If they swim upstream of the emotional current too much they run a  risk of sacrificing their efficacy, if not their seat, in office.  If they are going to make sacrifices of that type, it better be on something pretty serious.  Now, I am not really sure there is an emotional current after today, I really think there is simply emotional furor. So that would say just vote the evidence and let the chips fall where they may.

But, more importantly, even in districts where voting the evidence would definitively put a Senator upstream of the emotional current, I think they still should vote the evidence.  As Lindsey Graham said angrily today, if Kavanaugh is not confirmed there will be a huge disincentive for anyone to come forward for any office requiring confirmation by the Senate.  Why would that be true?  Because, based both on the underhanded way in which we came to this point, and on the evidence, not confirming Kavanaugh would be an enormous step away from the Rule of Law.  That is pretty serious.  That is the kind of thing where one must make a stand, even a stand that risks significant sacrifice.

We clearly stand at a national inflection point.  The election of Donald Trump made that plain two years ago.  We can choose to continue to be the nation we have been, the most successful in history, based on the rule of law.  Or we can return to that which our ancestors chose to leave behind.  There is a lot more to the votes that will be cast over the next few days than just the confirmation of Brett Kavanaugh to the Supreme Court.  This is fundamental stuff – gotta get it right.


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