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I keep hearing that the matter of Brett Kavanaugh is “just like Clarence Thomas and Anita Hill all over again”.
Seriously?
Point the First: Clarence Thomas stood accused of boorishness. Brett Kavanaugh stands accused of violent attempted rape. If all the accusations against Thomas were true, he deserved an elbow to the ribs. If the accusations against Kavanaugh are true, he should probably be in jail.
To suggest that there is even a rough equivalence here is sheer madness.
Point the Second: The other major difference between the two cases is that Thomas was accused of recent bad behavior, whereas Kavanaugh stands accused of decades-old bad behavior. This does not strike me as a terribly important difference.
Point the Third: Even if the accusations against Kavanaugh might be true, what is the point of keeping this nomination alive? When you have an open position in academics or in business, there is often one person uniquely qualified to fill it, and there is at least an argument for overlooking some unpleasant history if that’s what it takes to get this person. But Kavanaugh is in no way uniquely qualified to fill this Supreme Court position. There are at least three or four others who would have been just as acceptable to most of those who are supporting Kavanaugh.
Point the Fourth: In view of the above, what possible reason is there not to dump Kavanaugh and appoint one of those alternatives in a hurry? You might say this is unfair to Kavanaugh, but that, I think, cuts no ice. True, it deprives Kavanaugh of a Supreme Court appointment he’d otherwise have had. But at the same time, it grants a Supreme Court appointment to someone who would otherwise not have had it. There is no deadweight loss here.
Point the Fifth: As might be obvious to those who are familiar with some of my past political prognostications, I am no expert on practical politics. But, speaking as a layman who would very much like to see Kennedy’s seat go to a committed Federalist-Society-style judge a la Brett Kavanaugh, it seems to me that the best chance of accomplishing this is to dump Kavanaugh and move on, today and not tomorrow. Time is running out (as the Democrats threaten to take the Senate), and there is at least a possiblity that Kavanaugh’s accuser will come across to the public as extremely credible, in which case the nomination is sunk anyway, and if that happens a week from now, we’ll have lost some extremely valuable time.
Point the Sixth: I can see only one downside to dumping him: It creates a precedent and an incentive for the other side to gin up false accusations against future nominees. I agree that this is in principle an issue. But I don’t see immediate evidence of any propensity toward this (there was certainly no attempt to smear Gorsuch this way), and at the moment the one politician who I judge most likely to invent smears against his opponents is the one who’s currently making these appointments, not one of those who’s trying to stop them.
1st point – Agree
2nd – Its not just that it was decades ago, but also that it was when he was very young rather than an established adult. Given the seriousness of the charge that’s not enough to be decisive, but its not a big zero either.
Point 4 – I don’t think “unfair to Kavanaugh” is a big zero either. Yes someone else benefits from the appointment, but if I stole a billion dollars from Jeff Bezos and gave it to you (and somehow we’d both get away with it forever) the fact that you would benefit wouldn’t make it ok. The analogy has a serious flaw, Bezos has property rights while no one has a right to be a member of the Supreme Court. So lets change it. Lets say you had a job that I wanted and I could manipulate your employer to fire me and give me the job (assume I’m just as competent as you so I’m not harming the employer). Your fall back job was as good as the job I currently have. Our combined net income would still be the same, but that doesn’t mean its all ok.
Point 5 – Not so sure about this. Kavenaugh was appointed almost two and a half months ago. Two and a half months from now will be after the mid term elections. The Republicans may lose the senate. If they do they will still be in control then but the Democrats will have even more reason to try to obstruct and delay up to and including the type of thing you think is unlikely in point 6.
I think you underestimate the 6th point. If it works, you’ve just created and incentive to try again. Not just to gin up utterly false accusations, but also to spin and distort and present some true facts as some sort of serious crime or scandal whether or not they really are.
Tim Fowler: Thanks for this exceptionally thoughtful response.
Re Point 4, you make some good points, but I will point this out: If you steal a billion dollars from Jeff Bezos and give it to me, his loss is my gain, but the time and effort you spent stealing is pure social waste. That, in fact, is why economists generally think theft is a bad thing. In the case of the job manipulation, your machinations require time and effort that could have been used productively, so the same thing applies in principle (though of course the example isn’t fleshed out enough for me to know how extensive the machinations were — but the usual assumption is that I will engage in counter-machinations, requiring you to ramp up your own machinations, etc until the losses are quite large). In the case of dumping Kavanaugh and replacing him with someone else, there may be some analogous costs, but it’s not obvious they’d be large….
Some thoughts on strategy.
How quickly could another nomination be put through? Democrats will try to delay, of course, but Republicans might be able to double-time the schedule by blaming Feinstein for sitting on the information. (Republicans only need a plausible excuse for heavy-handedness given they have the votes.) Obviously, someone knowledgeable has to estimate the timeline. I assume this has already been done, and a back-up plan thought out and ready to execute. Also, don’t forget about the lame duck session.
If Ford’s story falls apart, Kavanaugh can be put up for the next position if the Republicans hold the Senate. This could actually be used as the cover story for withdrawing Kavanaugh’s nomination (“we are only delaying it”). Then, putting him on the court would be kind of fund, and, even better, he would be embittered against the left.
Perhaps most importantly, if Ford’s story does not fall apart, it may become an unending nightmare as Democrats impeach Kavanaugh on charges of purjury when they take the House. Since Democrats dominate the media, they can give the cold-shoulder to an accuser like Juanita Broadrick, but the Republicans can’t get away with that.
Hard to say how much substituting someone else would hurt future nominations. In the end, winning is the best revenge, and it is better to win now and worry about repercussions later.
#4: Dynamic perspective. It changes the incentives of agreeing to be nominated if you’d know that whatever is thrown at you that you wouldn’t be dropped but pushed through. I believe that Posner wrote that the nomination and appointment of federal judges deters some excellent candidates. There might not be a dwl today but equally good candidates might be scared off in the future.
Then again would you want to be on a court for life with an alleged rapist? It does hurt the prestige of the institution if he’s pushed through. This might also deter some candidates.
I think that if the Supreme Court seat was still open by the time the elections took place, that would greatly increase the risk that the Republicans will hold the Senate and Congress as it would give the Trump base a reason to go to the polls.
Steve,
You wrote:
“If the accusations against Kavanaugh are true, he should probably be in jail.”
Really? He should have received a 35-year plus prison sentence? I can buy that maybe he should have gone to juvenile hall, but a long prison sentence? I don’t get it.
David R Henderson: I was starting from the (true) assumption that his jail term has not yet started. My understanding is that there is no statute of limitations for attempted rape in Maryland.
#3 ” and, even better, he would be embittered against the left”
Being embittered does not make one a better judge, but rather the opposite.
Point 6 “I agree that this is in principle an issue. But I don’t see immediate evidence of any propensity toward this…”
It is an important issue and the ramifications go beyond just supreme court nominations. Possibly there is not a propensity towards this exactly because it is widely known that such accusations would need to be backed up before the candidate was dropped. If we apply the principle that there is very little difference between the first and second choice, then any accusation is enough to tip the balance to favor the second choice, who then becomes the first choice, ad infinitum.
I’d like to take exception with this:
No, he stands accused of sexual harassment of a subordinate. It’s the power imbalance of the employment context that makes this a much bigger problem than “boorishness”.
Boorishness is if you make inappropriate comments towards a woman (or man) at a party.
Steve Landsburg,
Touche.
The similarity is that both hearings were derailed by a single uncorroborrated MeToo story very late in the process. In both cases, the accusation does not seem to be changing any votes, as it is merely being used to intensify political opposition to a judge.
“there was certainly no attempt to smear Gorsuch this way”
How do you know? We only learned of this attempt after months of preparation convinced Democrats that an accuser could be sufficiently prepped to inflict damage on the nominee. Maybe Gorsuch’s enemies did seek to similarly find a way to smear him.
I wonder if the President can nominate a second candidate for the Supreme Court before the first one has been voted on? I suspect he can. Then, Republicans’ optimal strategy would be to do so. It leaves all their options open.
If Ford’s story collapses, vote Kavanaugh onto the Court. If the second nomination can be put through before the end of the lame duck session, then R’s have the option to vote either in. If the second nominee does not make it through in time, then R’s have the option to continue the process past January if they hold the Senate and they have the option to vote Kavanaugh on in the lame duck session if they don’t hold the Senate.
If Kavanaugh did not do what he is accused of, then what is to stop future false accusations? Republicans should think about not only this nomination but future nominations as well.
Steve Landsburg – Your welcome and thank you.
Re: “If you steal a billion dollars from Jeff Bezos and give it to me, his loss is my gain, but the time and effort you spent stealing is pure social waste. That, in fact, is why economists generally think theft is a bad thing”.
Its true that the time and effort I make to steal the money is negative sum. OTOH it could reasonably be argued that you or I would benefit from the billion more than Bezos would, and that the gain from that would not just exceed but far exceed the cost of our time and effort.
My main reason that thinking theft is wrong is that its an injustice to the victim.
Ignoring any issue of rights or morality and just looking at it as an overall economic sum I’m not sure that in this specific the time and effort of the thief is enough.
OTOH my scenario was a relatively simple stealing of a billion dollars. Normally you would get a lot less in exchange for more effort and/or risk.
Also you have to consider the incentives and secondary effects. The more common stealing becomes the more time and effort and resources will be put in to preventing it which is itself a cost and also would increase time and effort for the thieves if the potential victims defensive efforts are reasonably successful. If such efforts are not successful, and its easy to steal vast sums of wealth, then you get a situation where wealth is insecure, and you push people in to more short term thinking, and away from investing and accumulating capital.
As for the job scenario the injustice is a lot less, you don’t have a right to your employer’s money (beyond specific contractual rights), but slandering you (making the manipulation equivalent to what is happening to Kavanaugh assuming he’s innocent, assuming he’s guilty the moral calculation is quite different) is still and unjust action against you, as is IMO causing you to lose a job you would otherwise have.
Harold – Re: “…Possibly there is not a propensity towards this exactly because it is widely known that such accusations would need to be backed up before the candidate was dropped…”
Good point.
Advo – Yes he was accused of sexual harassment, but the harassment complain consisted of boorishness, not assault, not making sex with him a requirement to get a job, keep a job, get a promotion etc.
Rodger @September 21, 2018 at 10:53 am – Good point.
“…the time and effort you spent stealing is pure social waste. That, in fact, is why economists generally think theft is a bad thing.”
This is not why economists think theft is a bad thing. You are thinking of this as a one shot game with no consequences. With that reasoning, any pure wealth transfer would result in no economic loss.
What a weird situation.
Democrats are becoming exposed to serious risks now.
Whoever is advising Ms. Ford is doing her no favors in these negotiations. They are making her look unstable. Is it the advisers’ fault, or is there something else going on?
If this goes south for the anti-K people, it could be very bad for them.
The Republicans may be able to turn the entire narrative around on the Dems. The Repubs can say that the Dems have been using a vulnerable woman with mental issues for their own cynical purposes.
It would be a perfect turnaround because the Repubs don’t have to attack Ford. To the contrary, they are rescuing her from the Dems.
The vote on Kavenaugh becomes easy, Ford’s own team says she is emotionally fragile, and Feinstein herself said she didn’t believe Ford was completely truthful. Without corroborating evidence, there is no reliable evidence against Kavanaugh.
The Committee, out of sympathy for Ford, offers to end her suffering by allowing her to not testify to avoid further humiliation. Even if she testifies, how much weight can be given to her testimony in the absence of corroborating evidence? The questioning would be a sympathetic exploration of how she was manipulated.
The Dem’s nightmare scenario: Ford sues everyone who took advantage of her. Lots of sleazy inside information comes out. A special counsel might even be needed to explore the entire web of deceit.
The story was weird from the beginning and things didn’t add up. But, it makes sense if you see it as a story of a troubled woman taken advantage of by unscrupulous political operatives.
A life time of (mild?) mental problems: anxiety, “PTSD”, claustrophobia. A sympathetic, well-meaning therapist who helps her “see” it is all due to a 30-second encounter when she was 15. Mention of Kavanaugh only when he was in the news as a SC prospect. Indoctrination in the hysteria of the MeToo movement. Marination in the “K will kill millions” hysteria. But, she’s terrified of coming forward because she knows her story is shaky, and she isn’t sure of her story herself. But, she’s swept along by Dem operatives who draw her in then out her in a last ditch effort to derail K. She desperately tries to avoid an effective examination by forbidding questioning by an outside attorney.
Interesting side note: Grassley casually mentioned in his last letter to Ford that the Committee had been investigating since Sunday. Was this to signal that she was going to face some very uncomfortable questions?
Roger:
Perhaps the way to discourage future false allegations is to grind the offending politicians into the dust. A special counsel would provide months or even years of discouragement.
It may well be that a person who steals Christmas presents he likes is improving society’s satisfaction.
Another thing to realize is that penalties for rape (forcible or statutory) or carnal knowledge have historically been high enough to encourage murdering the victim or make bestiality more attractive.
Another day, another hit to Ford’s credibility. (Her lawyer says the hearing has to be delayed because Ford has to drive to DC even though Grassley offered to send people to California.)
So Steve’s analysis has to be rethought. Should K be abandoned given there is no credible evidence at this point? To put it in more economic terms, to abandon K, how high does the probability (p) have to be that Ford’s story is, for the most part, true? 50%? 10%? 1%? 0.001%? (This leaves out the additional question of whether K should be abandoned even if Ford’s story is true.)
Just throwing some numbers around, I would say p was about 25% before all the scheduling shenanigans, and is now below 10% … let’s say 8%. My gut says that is not high enough.
jimbino:
It may well be that a person who steals Christmas presents he likes is improving society’s satisfaction.
I have no idea what “society’s satisfaction” means, and am highly skeptical that it could have any meaning that is relevant here. It remains certainly the case that a person who exerts effort to steal Christmans presidents is reducing social welfare.
Really? In view of the “deadweight loss of Christmas presents” problem, couldn’t the efforts expended to redistribute the presents be lower than the welfare gains from redistributing the presents to a more welfare-enhancing use?
This is, of course, ignoring the tremendous decrease in social welfare that comes from merely having to live in a society where people are stealing other peoples’ Christmas presents.
Advo: Fair enough. I assumed that the recipient of the Christmas present was always going to sell it to the person who values it the most; now the thief will do the same. But given imperfect markets, your point is well taken.
Here’s another angle relevant to this blog’s focus on game theory: does game theory tell us anything about the veracity of Kavanaugh’s and Ford’s statements?
F named three other people that were at the party. (I’m not sure if there were other people beyond these three.) If she were lying, why would she name names that she knew would not back up her story? I find this the most compelling evidence in F’s favor.
K flatly denied the allegations before any of the three (or anyone else) had been heard from. If he were lying, wasn’t he exposing himself to a huge risk? I find this less compelling because he didn’t have much alternative. Still, it was a heck of a risk, and he could have gone to a milder defense that he was there but did nothing wrong or that F is exaggerating what happened in the room. Plus, I think K denied even knowing her very well. That seems easily contradicted too if false.
Re #8 (and Point 6) about encouraging false accusations.
Well, the Clarence Thomas situation also involved an accusation with no supporting evidence, which was and still is widely believed. And there’s the Obama administration’s “dear colleague” letter, encouraging colleges to deny students accused of sexual misconduct basic rights to defend themselves, like cross-examining “victims” (so-called on the basis of the accusation alone) or being represented by counsel. Many colleges have welcomed this encouragement and even gone beyond its specific recommendations.
Dropping the Kavanaugh nomination would do harm not just by encouraging false accusations but also by boosting the “believe the accuser without evidence” movement. For me, the saddest part of this whole episode consists of the stream of people who should know better saying “I believe her,” on the basis of nothing but reports that she has accused Kavanaugh of this behavior. These people haven’t even seen or heard her accusation, because Senator Feinstein won’t show an unedited version of Ford’s letter even to the chair of her committee. So it’s not Ford’s statements, which none of us get to see, that people insist they believe, it’s statements by Feinstein and Ford’s lawyer saying that Ford has made an accusation. Feinstein herself first said she didn’t know if the charge was true, though she has since recanted, apparently because uncertainty would hurt her re-election prospects. Who but an avid partisan would express a firm belief in the truth of any accusation when they haven’t seen either supporting evidence or even the accusation itself?
One minor detail: There is no statute of limitations for attempted rape in Maryland today, but that’s because attempted rape is now a felony. But at the time of the supposed event, it was a misdemeanor, so the statute of limitations ran a long time ago. Anyway, courts, unlike many politicians, celebrities, and journalists, require evidence.
For you as the rightful owner, selling Christmas presents comes with additional costs that a thief would not incur; namely, the wrath of the mother-in-law when she discovers that you sold off her lovingly selected piece of junk.
I thought economists generally view property rights as good (theft is bad) because they provide an incentive to create wealth, not just a disincentive to steal
For me the point is not the seriousness or not of the crime/misbehavior when Kavanaugh was in high school. It is that he is willing to lie about it. If he is denied the seat because he lied, it creates no incentive to bring false charges against any future nominee for public office.
I am somewhat surprised that Lansburg would be OK with a judge that seems so favorable to executive power.
SL: First,
” … speaking as a layman who would very much like to see
Kennedy’s seat go to a committed Federalist-Society-style judge a
la Brett Kavanaugh”
And then:
“… the one politician who I judge most likely to invent
smears against his opponents is the one who’s currently making
these appointments”
Thus, denigrating the same politician who appoints the desirable
Federalist Society choices? hmmmmm….
#31. There is no reason why a liar cannot make appointments that SL finds desirable.
A lot of Zazooba’s commentary has been overtaken by events. The testimony of D Ford was at least reasonable and worthy of consideration.
The testimony of Kavanaugh appeared to be tainted by partisan consideration (Democrat conspiracy), very unconvincing explanations (eg. about “boofing” being flatulance – how does that make sense “Judge, have you boofed yet?”), belligerent responses that have nothing to do with the point – such as bouncing the question about drinking back on the questioner. It is not relevant whether the senator drank to excess. He also seemed to think that his education was a moral free-pass (Did you drink enough to pass out –I went to the best law school).
He did not strike me a good choice for the appointment. As is so often the case, it is not the original offence that trips people up, it is the cover up. Teenage bragging and exaggeration in the year book may be forgivable, but lying about it under oath is not.