Justice Kavanuagh Confirmed

The Senate voted on Saturday, October 6, 2018 to confirm Judge Brett Kavanaugh as the next justice to the Supreme Court of the United States.  He was sworn in later that evening, moving him quickly into the seat vacated by Justice Kennedy's retirement.  He is seated today, hearing his first cases on the court, regarding longer prison terms for repeat offenders.  With a vote of 50-48, his confirmation was one of the closest confirmation votes since 1881.

And with this process completed, I wanted to offer a few thoughts on what this status brings.

1. It's sadly not over. - Though Justice Kavanaugh is now confirmed and seated, the controversy surrounding him is not over.  The American Bar Association is re-opening their evaluation of Judge Kavanaugh due to new information of a material nature regarding his judicial temperament, particularly in light of his fiery testimony on September 27, 2018.    Kavanaugh has also received around a dozen judicial misconduct complaints regarding the same fiery testimony, which are being forwarded on to the Supreme Court.  More extreme democrats have even raised the specter of impeachment.  President Trump has called the allegations a hoax, and is calling for tougher libel laws to potentially allow prosecution of the accusers (particularly Avenatti).  Dr. Blasey-Ford has announced, through her attorneys, that she does not plan to pursue further action against Kavanaugh, though it is a little unclear as to whether this references the mentioned impeachment action or legal action. It is also still unknown how Ms. Ramirez will proceed from here or whether she will pursue any further investigations of their accusations. The political fight over this particular issue is over, but the circumstances continue and you can guarantee this will be a sticking point in the mid-term elections.
2. For much of the country, his tenure on the bench will have an asterisk by it. - There are very likely equal populations that are celebrating and commiserating this event.  For while many view this as a circumstance in which justice prevailed, there is an equal population that sees this as a miscarriage of justice; an incomplete investigation that found the conclusion it was hoping to find.  And how we proceed from this, recognizing this divide, is to be charitable to each other.  To recognize there are valid reasons for each side's beliefs, not ascribing the worst possible motives to everyone against you.  There are reasons to be concerned about his tenure, beyond the accusations, particularly in regard to his views on executive power and accountability.  For those supporting, Kavanaugh has been groomed for this job and has been preparing for it for his entire tenure.  His record of supporting women in clerkship's and their advancement has been noteworthy.  Beyond his guilt or innocence of the accusations, there are credible reasons for concern and celebration.  We should recognize this and stop treating the other side as one lump group that is all represented by the worst of its members.  Perhaps in doing so, we could engage in meaningful conversations with people we disagree with to understand those opposing viewpoints and recognize the validity of various aspects of the other side.
3. There is no official finding of guilt or innocence regarding the accusations against Kavanaugh. - The FBI investigation and the hearing reached no conclusion on Kavanaugh's guilt or innocence; they merely reached a vote.  Both only provided information.  The conclusions were drawn by the Senators and have been drawn by each of us.  Ultimately, we are still at a place where the veracity of the allegations come down to each individual person's reading of the evidence, and likely feelings on the adequacy of the investigation.  As anticipated, we are still at a point where we have largely what remains a he said/she said scenario.  Barring further investigation and an actual case, we will likely never have more than this.
4. We've seen that much has changed since the Anita Hill testimony, but much remains the same. - In many ways, much similarity in the situation.  A reluctant testimony from a woman accusing a Supreme Court nominee of sexual misconduct, followed by a fierce and emotional response from the nominee, just days before a scheduled vote on the nomination.  Both justices confirmed in the process.  And both women vilified to a degree for coming forward with the accusation.  Now, Dr. Blasey-Ford has not been vilified to the degree of Anita Hill, but she has still not been able to return home due to death threats.  And while the Republicans on the committee chose not to grill Dr. Ford during her testimony, to avoid the appearance of the Anita Hill testimony, the mocking waited until after hearing both sides.  Trump mocked Dr. Blasey-Ford at a rally. And while others have said he was not helping the matter, many celebrated these statements or explained them away.  We as a country have divided into "I believe him" and "I believe her" camps.  And we are recycling many of the same tired arguments that arose after the Anita Hill testimony.  You can see them on Facebook and other social media.  The overt hostility to and distrust of any allegation that does not meet specific expectations.  The downplay of various forms sexual harassment as things that should not be issues in someone's past.  "Boys will be boys."  "They're only after one thing." "It's locker room talk."  "Why would anyone not come forward immediately?"  Perhaps there may be one silver lining from the similarities.  In the 1992 election following the Anita Hill testimony, a number of women were elected to seats in the United States Senate including Senators Diane Feinstein and Patricia Murray, who are both still serving today.  That election was dubbed the Year of the Woman.  Maybe the similarities will continue in this way as well.

The question then is how do we proceed.  We definitely have to get better at addressing sexual assault and harassment allegations as a society.  We have a long way to go in this aspect.

Further, we need to treat each other better in general, especially to stop demonizing those who disagree with us.  I've seen the images going around social media now that paint the horror stories of how all of American society will crumble if Republicans are not voted into office (I wish I were exaggerating) or how America will fall into tyranny if Democrats are not elected.  Neither image is correct and we need to stop playing that game.  It's not all or nothing.  It's just us.

And we need to start voting for people over party.  For those who are willing to buck their parties expectations.  For those who will accept limits of power.  And for those who move past the grandstanding and into service.

To organize and see a constitutional convention organized to place term limits on congressmen and women.

If you are not registered to vote, there is no excuse.  Today is the last day for your registration.  Go to https://www.votetexas.gov/register-to-vote/where-to-get-an-application-2.html to register online now.

Get informed and vote November 6, 2018.

Don't vote straight party. Read up on the candidates and vote for those that best represent you. There is a world of resources on the web to find out information on the candidates and issues on your ballot, including the two below.

Ontheissues.org
VoteSmart.org

There's never a better year to start than now.

A Good Person - Updated

"The Lord looks down from heaven on the sons of men to see if there are any who understand, any who seek God.  All have turned aside, they have together become corrupt; there is no one who does good, not even one."

Psalm 14:2-3

Yesterday, the Senate Judiciary Committee held its questioning of Judge Brett Kavanaugh and his accuser, Dr. Chrisine Blasey Ford.  And the day proved a study in contrasts.  The morning questioning of Dr. Ford was marked by a credible and emotional witness who described in detail the alleged assault and the effects that it has had on her life and by very measured questioning from the committee and the investigator who handled all of the Republican questions.  Dr. Ford was adamant that she was "100%" certain that Brett Kavanaugh was the person who assaulted her.

The afternoon was a much more fiery affair. Judge Kavanaugh was just as adamant in his denials, and almost defiantly so.  The questioning, at least initially, became much more of a hostile witness approach, with Kavanuagh reciprocating and treating questions from the investigator and the Republicans on the committee much more directly and appearing openly hostile to the Democratic questions.

The entire hearing was one filled with more dramatics and theatrics surrounding the timing of disclosure and the lack of a more in depth investigation.  All in all, we got what we mostly expected.  No new information, beyond confirming that Dr. Ford has a credible allegation.  We still have a he said/she said account of the events and have possibly impugned the character of the Senate Judiciary Committee in the process.

"Too often we judge other groups by their worst examples while judging ourselves by our best intentions."

President George W Bush

One particular refrain throughout the hearing were the accusations of political maneuvering and conspiracy.

Republicans are trying to ram this through without a full investigation.  

Democrats sat on these allegations and have delayed until now just to derail the process.

Kavanaugh even included the possibility this was all a "political hit" and potentially all "revenge on behalf of the Clintons."

Everyone looks noble to their side and assumes the worst of the other, and both sides have been guilty of this.  If we take off the presumption that the opposing side is only acting in the worst possible way, it seems we have reached this point because Senator Feinstein had never planned to reveal Dr. Ford's accusations at all and did not do so until the information had already been leaked.  Contrary to what was discussed in the hearing, what leaked first was the fact that Senator Feinstein had a letter regarding some allegation.  This information very well could have come from one of the friends Dr. Ford told about the assault and the steps she had taken.  The letter itself did not leak until two days after the Intercept article.  Then Dr. Ford came forward when reporters began hounding her.

From what we have heard from Senator Feinstein, these allegations may very well have remained completely confidential and undisclosed had the information not leaked.  At this point, we do not know why Senator Feinstein took such an approach.  Perhaps she took confidential to mean that Dr. Ford did not want the allegations to come out at all.  Perhaps Senator Feinstein did not believe the allegations in the letter were credible enough at that point without further open discussion to derail the confirmation process.  We do not know enough at this point to assume and impugn motive.

Likewise, we impugn ill motive on the circus that has surrounded the scheduling of this particular hearing and the delay that resulted.  And while political motivation is possible and probable, there are many other complex factors that certainly played large factors.   Just in my office, trying to schedule a short meeting can be downright impossible.  I cannot imagine what occurs at this level.

For certain, there is plenty of blame to be thrown around regarding how this all went down.  But there is nothing gained (but political favor) by continuing to denigrate the opposite side.  There is nothing gained from calling this whole process a sham, as Senator Lindsey Graham so indicated, beyond continued division.  And because both sides took this approach, we gained very little in terms of questions to either Dr. Ford or Judge Kavanaugh, and instead came away more with the political theatrics and grandstanding.

Let me tell you what I wish I'd known
When I was young and dreamed of glory
You have no control:

Who lives
Who dies
Who tells your story

Who Lives, Who Dies, Who Tells Your Story - Hamilton

What we have seen through this whole process is a tale of two Brett Kavanaughs.  Judge Kavanaugh presents his past as one where he was the ultimate goodie-two shoes.  His testimony focused on how he was top of his class, got into Yale, into Yale Law School.  He was always working, always studying, always working out or with the athletic teams.  He documented everything meticulously.  As many people stated and as was stated throughout the hearing, he was and is a "good person."  Sure, he enjoys beer, who doesn't, but he has never been that hard of a partier.  Never blacked out or not remembered the night before.  How could such accusations about him be true?

And yet, there is also the Brett Kavanaugh of the allegations.  Now three different women have come forward and have accused Kavanaugh of some form of sexual impropriety.  Some of the allegations have been corroborated, though anonymously.  Further, there are classmates who have stated they remember Kavanaugh as a blackout drunk, a belligerent drunk, a very hard partier.   There's the Kavanaugh of his yearbook which seemed to paint a different picture of his high school days that the one Kavanaugh has been stating.  Even with the more innocent explanations, there is a picture of how Kavanaugh is at least remembered by some that does not match Kavanaugh's own story.

And this matters because we are down to he said/she said.  Because we have two people who both claim 100% certainty, though in complete opposition.  Dr. Ford's testimony has the appropriate gaps in memory that we would expect from such events.  Things that are seared into her brain, while others take reconstruction or are not remembered.  This is why eye witness testimony is one of the least reliable types of evidence.  Our memories are faulty.  They leave out details, they have gaps, people focus on different things.  If you have a group of people who all tell the exact same story down to the last detail, it is generally thought of as unbelievable, as it comes across as rehearsed and likely fabricated.

Kavanaugh has left himself no wiggle room in his testimony.  His past has to be perfect or he has planted doubt as to what he is covering up.  He has categorically denied even ever being at a party like the one Dr. Ford described.  He is placing such strong emphasis of his memory of events from 36 years ago and on his transcribed record of the time, he leaves himself no room for error.  No room for anything he may have forgotten or mis-remembered.  And because we have other accounts of a different version of Brett Kavanaugh from that time, the question of his past continues to be a specter over these allegations.  Even a simple, "yes I partied hard and have definitely been very drunk in the past, but I know I never did this" (if true) could have gone a long way to address the conflicting accounts.

The truth is likely somewhere in the middle.  Could Kavanaugh have been so drunk that he didn't remember being at such a party?  Could Ford have mis-identified her assailant?  Without further investigation, these are the type of questions that we will not have answered.

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Ultimately and unfortunately, this is likely where this process ends.  As of now, the Senate Judiciary Committee still plans to vote today to recommend Kavanaugh for the nomination.  No further investigation is planned at this time, though one has been recommended and requested by several organizations including the American Bar Association.  We are likely never going to have more information on the accusations or the underlying facts at issue.

What we can do is work on changing the world around us to help make sure we as a society are not in this situation again.

• Every 98 seconds an American is sexually assaulted.
• And every 8 minutes, that victim is a child.
• 1 in 6 women have been sexually assaulted or raped.
• 3% of men have experienced sexual assault or rape (likely higher due to under reporting).
• An average of 63,000 children a year are victims of sexual assault.
• 9 out of every 10 rape victims are female.
• 6 out of every 1,000 perpetrators will actually see prison.
• As of 1998, it is estimated that 17.7 million women have been sexually assaulted or raped.

• About 2 out of 3 sexual assaults go unreported.
• 7 out of 10 rapes are committed by someone known to the victim.

We've got to work on changing system to believe sexual assault victims when the come forward and to encourage victims to speak up and support them through the process.  Because some other statistics are even more troubling.

Of those who were assaulted and did not report, but offered a reason for not reporting:

• 13% believed the police would not do anything to help
• 13% believed it was a personal matter
• 8% believed it was not important enough to report
• 7% did not want to get the perpetrator in trouble

While the most common reason was a fear of retaliation, the reason above represent 41% that either did not believe anyone would help or did not want to trouble the perpetrator.  Because sadly, the perpetrator is most often someone they know and someone they think would be more believable than them.

Someone everyone else would think is a "good person."

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Update - As of 2:00 pm ET, the Senate Judiciary Committee voted 11-10 to advance Judge Kavanaugh's nomination to the Senate Floor.  By 3:50 pm ET, the Senate Republican agreed to a delay of no greater than one week to allow for an FBI supplemental background investigation into the allegations against Judge Kavanaugh.

Rape Culture

The accusations and hearing surrounding Supreme Court nominee Judge Brett Kavanaugh and his accuser Christine Blasely Ford are bringing up discussions of "rape culture," particularly with the potential for an ugly committee hearing on the accusations and the new deadline requirement for Ford send a copy of her prepared testimony and biography to the committee today for her to be able to testify at all.

"Rape culture" is a term coined in the 1970s to show the ways in which society blamed victims of sexual assault and normalized male sexual violence.  It has been defined as a complex set of beliefs that encourage male sexual aggression and supports violence against women.  Under rape culture both men and women assume that sexual violence is a fact of life and inevitable.  Rape culture includes jokes, TV, music, advertising, legal jargon, laws, words, and imagery, that make violence against women and sexual coercion seem so normal that people believe that rape is an inevitable outcome.  It's "just the way things are."  It's compounded by statements that "boys are only after one thing," "she was asking for it (by the way she dressed, looked, where she was, etc.)," that "she should never have been alone with a boy," or that if a guy tries hard enough, he can change a "No" to a "Yes."*

It's even worse when such statements are made by those that have the power to affect change.  The following infographic, compiled by the Women's March in Minnesota, reveals the insidiousness of the language used by our elected officials surrounding rape.

The comments are appalling for several reasons.  First, many of them reveal the reason we need better sex education in our schools, as they reveal a shocking lack of understanding of basic human biology.  Second, the idea that victims should "make the most" of this kind of violation is down-right despicable.  At least Texas had the sense to vote for Ann Richards over Clayton Williams after his comment/"joke". Finally, any assertion that it should be expected in any situation devalues both the men and women involved.  Especially for the assertion to be that women should have expected it when they served in the military.  It devalues the victims and it devalues all service men and women to say that they lack such basic control over themselves that rape is a natural outcome.

The biggest problem with such statements is what it does to those hearing them, particularly those who grow up hearing such statements on repeat.  The onus it puts on young women to make sure they are doing nothing to "entice" someone to rape them.  To make sure they don't dress a certain way, they aren't in certain locations, to never put their drink down, and on and on and on.  And the lowered expectations it places on young men that they will not be able to control their urges, but instead will be ruled by them.

We have to expect better of ourselves and we have to speak better of those elected on our behalf.  I pray that should this hearing go forward, it will not be a repeat of the Anita Hill testimony in the Clarence Thomas nomination process.

We have to change the way that we discuss sexual assault to remove any shifting of blame to the victim.  No more "what was she wearing," no more "should she have been there," no more "did she fight enough," no more language that insinuates the victim did any enticing or that the perpetrator is not solely responsible for their actions.  The only expectation that we should be having around rape is that no one should have sex without consent from the other party.  Period.

Please note, we can still have a vigorous prosecution and defense in rape cases to confirm accusations.  But it changes the line of questioning from a sort that downplays the accusations and nearly assumes the victim's partial responsibility for the assault to one that treats the accusations with the severity they deserve, confirm their validity, and assigns the blame squarely on the perpetrator.

And beyond changing the way we discuss sex and rape in society, this should also impact the way we discuss sex within the church.  Currently, there is a disconnect between the way the church discusses appropriate sex and the way the world discusses appropriate sex.

This is to be expected to a certain degree.  One would expect the church's view to be narrower than the world's at large.  However, what is actually occurring seems to be the two groups talking completely different languages, leading to an apples to  skateboards comparison.

To illustrate, society's view is to break sexual encounters down into consensual and non-consensual.  Under that general breakdown, consensual sex is generally always good and acceptable, non-consensual sex is always bad. That really becomes the primary consideration.  The configuration of the parties does not matter as much as consent.

The church's view eschews consent for appropriate and sinful.  Through the general (conservative) view of the church, the only appropriate sexual relation is between a married husband (male) and wife (female) specifically.  Anything else is sinful.

The disconnect in an image

The problem is that under the church's rubric, consent is not really a consideration and it can seem to place all manner of sexual issues on the same level.  Consent is somewhat assumed in the relation between a husband and a wife, but it is not specifically accounted for.  And that is where things get problematic.  The Bible does not speak specifically to the requirement of consent in the marriage relationship, but does speak to a denial of "martial duty"/sexual relations only by mutual consent (1 Corinthians 7:5).  Some have interpreted this passage to mean that marital rape cannot exist, and this has had an affect on the laws in our country.  Up to 1993, only seventeen states had laws on marital rape.  And while all states now have laws which account for and make marital rape illegal, eleven states treat marital rape differently from other sexual assault, some requiring higher standards of proof, threats of force, or carrying lesser penalties.

Regarding the variety of sexual sins being put on the same level, it can lead to such disparate treatment as we saw between the way many in the church and on the right responded to the Lena Dunham and Josh Duggar instances.  Lena Dunham was vilified for her discussion of her curiosity regarding her sisters body parts, while many stood behind Josh Duggar after his molestation accusations came forward because he was "forgiven."  The two issues were not of the same level, and deserved very different responses than they received. (Please note, I don't agree with the title of the link and think it goes too far not understanding godliness, and though a farther left leaning article, it brings up very good discussion on the disconnect above).

We need to change the churches categories.  To build off the charts above, I would propose at a bare minimum a version like the following which should be acceptable to even the most conservative of believers:

Scholars can and have quibbled over the line between Sinful Legal and Permissible, as there is much discussion about where that line goes.  That's an entirely separate discussion.

But we have to recognize the importance of consent and its role in all sexual relationships.  For the life of me, I will never understand the conservative opposition to this notion.  And yet, when ideas to combat rape culture like "Yes Means Yes" or affirmative consent are raised, they are met often with Conservative opposition.  It should be very easy for all to say that they are behind appropriate consensual sex.  Even for the church to affirm that the kind of sexual relations that are affirmed in scripture between husband and wife should be consensual.  To view the passage in 1 Corinthians (combined with many other passages) as requiring appropriate, loving, thoughtful care for each other and not allowing for one-sided demands of each other's bodies.

This really should be an easy topic for all parties to get behind.   And "rape culture" should be something that is in our power to change.

But we've got to start with how we discuss the issue ourselves.  For each of us to rid those thoughts of "what was she wearing" or "how was she provoking it."

So let's not make it another division.

Please.

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* - An important note.  For the purposes of this rant, I've continually worked under the framework of a female victim of sexual assault and a male perpetrator.  I've done so partly because of the framework of the infographic and partly as the term "rape culture" came out of feminism and as a result of the particular culture we have the plays to these stereotypes.  Even in our most recognizable literature like To Kill A Mockingbird  or films like Anatomy of a Murder.  However, it is worth noting that beliefs and statements like "a woman cannot rape a man," "a man is always willing," or that when certain biological functions work that indicates willingness regardless what a man may say are likewise damaging to our society and further indicate a downplaying of sexual assault in our society.  These kinds of attitudes are why among female victims only 36% of rapes, 34% of attempted rapes, and 26% of sexual assaults are reported.  The percentages are lower among male victims.  We have to change for their sake.