The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, Politico organized an insta-symposium on the Kavanaugh-Ford sexual assault hearing. Participants included a variety of legal scholars and commentators with widely divergent views, including Bruce Ackerman, Mari Matsuda, Deborah Rhode, Sai Prakash, Ilya Shapiro, and myself. Participants on both sides made good points. I fear, however, that symposium very much reflects the sort of ideological and partisan polarization that I decried in my contribution to it, and also in this post. Here's an excerpt from my Politico piece:
I thought Christine Blasey Ford was credible. It is hard to deny she genuinely believes that Brett Kavanaugh assaulted her…..
Kavanaugh's anger and belligerence struck me as less persuasive than Ford's calmer demeanor. Some of his insinuations of being a victim of a left-wing conspiracy (motivated by "revenge for the Clintons," among other things) seem excessive and inappropriate for a Supreme Court nominee… That said, it is not surprising that a man who is falsely accused (or believes himself to be) would feel great anger, and might engage in rhetorical excesses that would not occur at other times….
More generally, we should be wary of judging the witnesses based on our subjective impressions of demeanor. Studies show that most people are not as good at detecting liars as they think they are. And we also should not dismiss the possibility that one or both witnesses' recollections of long-ago events could be seriously inaccurate even if they genuinely believe they are telling the truth.
Our judgment may be even more flawed in a case where it is likely to be compromised by ideological and partisan bias. One of the most striking aspects of commentators' reactions to yesterday's hearing (and the sexual assault accusations more generally) is the extremely high correlation between what people think of the allegations and whether they believe Kavanaugh should be confirmed aside from them. Liberals who opposed to Kavanaugh before the accusations overwhelmingly believe they are both accurate and disqualifying. Most conservatives who like Kavanaugh's jurisprudence believe that the accusations are false, or at least insufficiently proven to warrant rejection of the nomination. As a matter of logic, it should be possible to simultaneously believe that Kavanaugh is a great jurist, yet also likely guilty of sexual assault, or, conversely, that his jurisprudence is badly flawed, yet Ford's accusations are insufficiently proven to be disqualifying. The fact that these two positions have so few adherents is a strong sign that reactions to the accusations and hearing are heavily influenced by "motivated reasoning"—the tendency to interpret evidence in accordance with political and other preconceptions….
What can be done to improve the nomination process? I am not sure very much can. Most of the flaws in it are manifestations of the deep polarization and partisan hostility that have infected so many other political institutions. The system is already very effective at screening applicants for professional qualifications, and for potential flaws in their background that the FBI can identify and investigate in advance. On the other hand, the system is clearly terrible at handling accusations that arise relatively late in the process…
Note: The part of my contribution that criticizes the GOP's refusal to allow a more thorough investigation was written before The Republican leadership gave in to Sen. Jeff Flake's demand to delay the final Senate floor vote until the FBI is able to conduct an investigation for a week. It is not yet clear to me whether the time and scope of the investigation will be broad enough. But this is at the very least a step in the right direction.