Judicial Nominations

Judging Neomi Rao

Why college writings are complicated but the perfect solution fallacy is worse.

|The Volokh Conspiracy |

The legal world has been abuzz with the nomination of Neomi Rao, and my coblogger Jonathan Adler has detailed her accomplished background here. He has also criticized the focus on her college writings on topics such as homosexuality and consent. I have only met Neomi on a few occasions and hardly know her, so my observations in this post are largely those of an outsider that has access to similar information as the rest of the public.

First, I would like to point out that Republican politicians and parts of the conservative media have done Neomi no favors in comparing the accusations against her to those that Justice Brett Kavanaugh encountered. One example of this is her college classmate's Jeremy Carl's National Review piece entitled "The Kavanaughing of Neomi Rao", which manages not to reference Brett Kavanaugh by name a single time in the actual text of the article. Instead, we are served to unsubtle allusions in lines such as the one that "Rao is an outstanding nominee who, like many other conservatives, is not being attacked for her faults, but for her virtues."

Meanwhile, Megan McArdle writes that Neomi "is being targeted by a similar sort of allegation — in the same family, but distantly related." In my view, whatever one thinks about the procedural aspects of Brett Kavanaugh's nomination and confirmation process, the accusations against him were significantly more serious than those against Neomi. Nobody has come forward to claim that Neomi committed sexual assault or otherwise broke the law. Additionally, Neomi admits–and states that she regrets–writing what she wrote about gender equality and the nature of sexual consent. Brett Kavanaugh admits nothing and regrets nothing when it comes to his relations with the female gender.

Last but not least, Neomi is not under suspicion of having committed perjury at her hearings. Those who believe that there is any equivalence in unfair treatment of Neomi Rao and Brett Kavanaugh may want to revisit the latter's record regularly.

Second, should Neomi's college writings matter? Jonathan Adler emphatically says no, and David Lat has similarly urged for some time that judicial nominees' college writings should generally be left in the past. Lat makes very reasonable points about how people often change their views and how college should be a time for experimenting intellectually, lest we only accept what David Brooks termed organizational kids that never dare to say anything controversial. So why do college writings come up at confirmation hearings? One key reason, of course, is political opportunism, whereby both parties dig up all the dirt that they can.

Another reason, however, raises more complications: judicial nominees were often less careful to hide their views in their youth than later in life when they entered the professional and especially political arena. I am therefore rather unconvinced when McArdle writes about Neomi: "If she's lying, there should presumably be some less elderly, and more relevant, evidence of deception." Given the nature of the political process, actually, no, I would not expect for there to be such evidence whatsoever because most people who have made it to the stage of being nominated by U.S. presidents are savvy enough not to produce it.

At the end of the day, we do not know and cannot know for sure what Neomi or any other nominee thinks in her heart of hearts, an uncertainty that leaves us with some understandable anxiety given the great power of appellate court judges. That said, I would caution against dismissing an entire class of possible nominees because they were perhaps not raised by parents who were part of pre-existing political elites advising their children that in college they should "talk less, smile more".

Third, were the college writings that bad? I do find some of their content quite problematic, though unfortunately even when I attended Yale College several years after Neomi, in the early aughts, her past rhetoric on sexual consent was in line with what many other young conservatives believed (and some of them have become conservative commentators who to this day write similar things).

I am troubled that Neomi wrote that "if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice". For one, this potentially equates drunk dating with drunk driving in the sense that we should hold someone responsible (morally? legally? it's unclear) if the person gets raped similarly to how we would condemn someone (both morally and legally) for hitting someone with her car while drunk. But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does, and implying otherwise is wrong.

I don't buy that, as Ted Cruz at the hearings and conservative commentators since have tried to convince us, Neomi was simply trying to help women by giving them advice on how to protect themselves. Her statement was embedded in a moral (and potentially legal) context that unfortunately did lend itself to victim-blaming. I have explained in my scholarship on sexual fraud why the argument that someone could have done more to protect herself (even where factually accurate) is problematic because 1) that can be true of most crimes and torts and 2) it tells us nothing about what level of precaution is actually optimal at the societal level.

Fourth, that said, does this make Neomi Rao a particularly poor candidate for the D.C. Circuit? I doubt it. She shouldn't have said what she said, and I genuinely hope that she meant it when she disavowed those opinions at the hearing, but viewing her overall record, I find it hard to believe that she compares negatively in the pool of nominees that Donald Trump would realistically consider. This is where the perfect solution fallacy comes in: those who were already wiser on the topic of sexual consent in the 1990s are unlikely to be on the current political radar.

Indeed, if Neomi's nomination got derailed, we would likely get a different Republican nominee who perhaps did not write anything in college newspapers but is no more likely to advance gender equality than the confirmation of Neomi Rao would. Note that this was not my view of Brett Kavanaugh and that, like Ilya Somin, I fully believe that a less problematic candidate could have been found if Kavanaugh failed to be confirmed given the gravity of his alleged conduct and behavior at the hearings.

Fifth, a broader problem remains, which is that while we are urged by some to forget what Neomi Rao said 25 years ago, that means she also had 25 years to express in a public forum that she changed her views. Monica Hesse writes in WaPo: "What I'd love is for someone to get it right. Some candidate or appointee to apologize not because a leaked photo had suddenly forced them to, but because they realized the error in their past behaviors, and they were prepared for an honest conversation illuminating America's hurtful past and the role they played in it."

To be fair, perhaps Neomi didn't even remember what she wrote all those years back until it was brought up during the confirmation process. But those of us who put things in the press–even the college press–have a special responsibility to correct the record wherever possible, a responsibility that is only increasing the more materials are available online and hence never truly become a part of the past. Of course, admitting to past intellectual mistakes can come at a (sometimes high) political price. Society can do its part in that respect by moving toward becoming more generous and hospitable toward those who step forward unprompted to say that they were once wrong and have changed their ways.

NEXT: Elizabeth Warren Formally Declares Candidacy, Enters the 2020 Race

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  1. ” I am troubled that Neomi wrote that “if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice”.

    Not sure what is troubling about an objectively true statement? Drinking to excess and expecting men to behave with honor is a great way to end up pregnant (or worse). This in no way exculpates the man in question, but we do our daughters no favor if we teach them to behave stupidly. And we do society no favors if the truth can’t be spoken because it offends someone’s fantasy worldview.

    1. Personal responsibility is the bane of idiots. This new guest author isnt doing herself any favors. 0-2 so far.

      1. “0-2 so far.”

        Yes, open borders and radical feminism to start out is not promising.

    2. Moreover, drinking to excess with other people who are drinking to excess, and expecting to be the only one in the room who isn’t at fault for what follows, is remarkably self-serving.

      1. Yes. But although it’s impermissibly sexist to mention biology, if you’re all drinking drink for drink, the girls are going to get drunk a lot quicker than the boys.

        Also if you’re in your first week in college, and you’re not used to drinking, you’re going to get drunk just by looking at the label on the bottle.

        1. My disdain of college drinking culture is total.

          But nonetheless, it isn’t as simple as what you say. For one thing there is enormous pressure on people to drink, to “fit in” and be popular. For another thing, rapists ply their victims with alcohol and look for situations where everyone else is drunk so nobody will remember anything, intervene, or report the assault.

          So you can’t just tell women not to drink. You have to get at the entire culture of campus drinking. The sexual assault problem is at bottom a result of a lot of choices by college administrators and alumni who are afraid to shut down structures that have nothing to do with learning but which are popular with donors and prospective students.

          1. “Women are too weak-willed to refuse an offered drink” is not exactly a solid argument, ya know.

            Well, at least these days. Back when people opposed the Suffragettes, that sort of claim was quite popular.

            1. “Women” is a conceit. They’re still children.

            2. It isn’t specific to women. Young people drink to fit in. Both genders.

          2. Yes, you most definitely can tell women not to drink to excess around men. I told that to my daughter and, no, I didn’t feel the need to try to reform “the entire culture of campus drinking” in order to tell her that. Similarly, I told my son not to smart-off to or otherwise antagonize cops. And no, I didn’t feel obligated to attempt to reform the entire culture of authoritarian policing in order to tell him that.

          3. So what you are saying is that Rao was right.

    3. Why shouldn’t it exculpate the man (or woman, like drunk men don’t sleep with women they later regret). You’re making an affirmative decision, while in your intoxicated state, to do something. The ‘crime’ is occurring because the partner, also likely not sober, has not determined for you that your consent is invalid. Saying “yes I want to have sex with you” should end the question of consent and responsibility, because other people shouldn’t be held criminally liable for determining that you’re too drunk to decide for yourself, and wouldn’t make that decision sober, and are therefore denied your agency. ‘Too drunk to consent’ should exclusively involve cases where there’s no ability to express a preference one way or the other; and in that state drunk driving isn’t a possibility either because actually driving down the road isn’t possible.

      1. The drunk man is expected to correctly determine if the drunk woman is legally unable to consent. Even though he may in fact not be able to consent either

    4. Absolutely correct.

  2. There are signs like these posted all over my city, including my church’s parking lot (!)

    HIDE your things. LOCK your car. TAKE your keys.
    http://www.hidelocktake.com/pr…..avy-gauge/

    Are these signs victim-blaming? Or are they helpful tips to avoid becoming a victim of crime? The City government posts them in some places.

    1. Kevin,

      I have explained in my scholarship why the argument that someone could have done more to protect himself from auto theft is problematic because 1) that can be true of most crimes and torts and 2) it tells us nothing about what level of precaution is actually optimal at the societal level.

      1. ” 2) it tells us nothing about what level of precaution is actually optimal at the societal level.”

        That kind of misses the point of doing something to protect yourself. It’s to be optimal at the personal level, not the social level.

        You might not be able to make the dark alley safe, but you can refrain from walking into it.

        1. That kind of misses the point of doing something to protect yourself.

          E’s poking fun at Irina, by copying her dotty reasoning verbatim.

          It’s to be optimal at the personal level, not the social level.

          Even “optimal at the personal level” isn’t really a thing. The appropriate balance between risk and reward is a subjective judgement, different for each person to be sure. But it will also change for each person from time to time. The only objective external commentary that makes sense is “Are you sure, Jack ? Do you really think a 20% chance of losing a leg is a reasonable risk to take to get a Big Mac ?”

          Of course we can each make our own subjective judgement about Jack’s choice. So when he loses his leg, we can sympathise or not according to out own valuation of the dumbness of the risk he took. But we should still be willing to help him across the road, because judgement should be sprinkled with compassion.

  3. Well people who put themselves into risky situations tend to run risks. That goes for when I decide to visit my friend who lives right next to a not so nice neighborhood. When I walk the dog around the park at night, and even though it is considered to be safe, there is usually at least 1-3 incidents of muggings reported every year. Feminists don’t like any advice that is targeted at women that talk about risk avoidance.

    As far as homosexuals, liberals tend to forget that they only became a cause celebre and favored minority about five years ago. It was pretty standard among rank and file republicans and democrats to turn a blind eye to the gay agenda and support marriage only among men and women. I would say that was the prevailing opinion for about 90% of society up until around 2010. The gay agenda is still controversial but is now more widely accepted since homosexuality won the golden cow of preferred class victim status. So yeah not hard to find historical opinions that are “anti-homosexual” if you go digging before a few years ago. It is just when you say find Hilary Klinton endorsing only marriage between a man and woman it is quietly ignored or “forgiven”.

    1. It was pretty standard among rank and file republicans and democrats to turn a blind eye to the gay agenda and support marriage only among men and women. I would say that was the prevailing opinion for about 90% of society up until around 2010.

      You would say incorrectly. Gallup’s historical polling doesn’t show anywhere near 90% of people believing only heterosexual marriage should be given legal recognition. Even in 1996?the first time the question was asked?that proposition didn’t reach 75%.

      https://news.gallup.com/poll/117328/marriage.aspx

      1. And it never dawned on you that before 1996 no one even bothered to poll the question because they knew the answer was 90%+ didn’t believe in homosexual “marriage”?

        Polls are useful for one thing, paying a class of people to conduct polls because otherwise they would be unemployed.

        1. You’re the one who said “up until 2010.” Nice goalpost shifting; I can tell this will be a productive conversation.

          1. I did nothing of the sort. Merely stated that I generally don’t trust polls especially when it comes to cultural questions where the politically correct answer is one way or another.

            Reminds me of a study done in the mid 90’s concerning opinion and affirmative action. At the time the Left portrayed any white person who opposed affirmative action to be essentially a racist. When publicly asked the question something like 3/10 white people would say they opposed affirmative action. When asked the question on a confidential survey to number increased to about 6/10. Then, when given complete anonymity and assured the survey would only be counted by a third party that would have no way of obtaining the identity of the person being polled the number of whites opposing affirmative action went up to about 8/10.

            Polls about cultural issue are practically worthless because if you don’t give the politically correct answer the Left may use this to smear you, try to get you fired, ruin your life, etc. This apparently now even applies retroactively in that actions that are 30+ years old are now fair game. Just take something completely out of a historical context, apply modern left wing sensibilities, and PRESTO manufactured controversy.

            1. I recall that Prop 8 vote or whatever in California that failed, and lo and behold all the Latino Catholics voted (secret ballot) against it instead, shocking Democrats that they were faithless members of their “you scratch my back I scratch yours” coalition.

              As a small-L libertarian I’ve been in favor of it since 1990 or so, and remember it wasn’t exactly a popular position. So one can hardly complain the shame shoe is on the other foot for the first time in…ever.

              1. I would be lying if I said I don’t find it hilarious that the Dems in VA are being victims of their own manufactured outrage machinery. In fact I laugh hysterically when it comes out another Dem in VA wore black face or was a rapist, etc.

                That said, I don’t think having the manufactured outrage machine in society and public discourse is a good thing. But, yeah, it is funny to watch the machine operators get chewed up by their own invention.

                1. I don’t think Jimmy’s point on gay marriage depends on 90 vs. 75 percent. He is right that plenty of people, liberals and conservatives, have changed their minds on that issue and gay rights more generally in recent years.

                  1. Sorry, Dilan, I stopped paying attention to Jimmy when he decided to spell Clinton with a “K.” (Just as I ignore any liberal who believes it’s clever to call someone a Rethuglican.)

                    To the extent that Jimmy being a smartass makes him feel better, it’s a fine way to comment. To the extent that he wants to actually convince people of the merits of his arguments, it’s a pretty stupid approach.

                    1. I am not a fan of that sort of writing either. But his point- that lot of people’s positions from 15 years ago make them look like homophobic bigots- is true.

                    2. But the opposing point is that enough people still hold these positions today that they’re still in the mainstream. 20 years ago they weren’t just mainstream, but majority viewpoints.

                      She seems to think the argument is between,

                      1) Saying it 20 years ago, is nasty, but if you repudiate the view today you can redeem yourself.

                      and

                      2) Saying it 20 years ago, is forever disqualifying.

                      When the truth is, a lot of people still hold to these viewpoints, and the party that represents them happens to control the White house and Senate.

                      Keeping that in mind, it’s difficult to see how the views she expressed 20 years ago ought to be seen as disqualifying if she’d expressed them 20 minutes ago.

    2. Good point. Using the standard they are applying to Reo, neither Hilary Clinton, not Bill Clinton, nor Barack Obama are qualified to sit on the federal bench.

    3. Good point. Using the standard they are applying to Reo, neither Hilary Clinton, not Bill Clinton, nor Barack Obama are qualified to sit on the federal bench.

  4. “if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice”.

    I can see nothing wrong with this statement, and would support anyone saying it today. People try to excuse bad behavior because they only did it after they were drunk. And so, they blame the bartender for having served them. But before the bartender served them the second drink, they weren’t drunk. And before the bartender served them the third drink, they likely weren’t too affected by alcohol to know better. At each point, they made a decision to continue drinking, knowing the inevitable result or carrying on. So yes – be definition – ‘getting to that point was part of her choice.’ What is there that is ‘conservative’ about this truism? It’s logic, not ideology.

    This is a classic example of conservatives/libertarians selling out to the left without a struggle. And thus, we move further and further to the left, while bitching about it all the way.

    1. Generally being drunk does not absolve one of responsibility when it comes to criminal and civil liability. It also does not immunize people from things such as consenting to a search or even waiving certain rights such as Miranda.

      When it comes to sexual contact being drunk also doesn’t immediately mean a party cannot consent. It goes into the matrix to determine ability to consent, but just being under the influence of alcohol and/or drugs is not in of itself enough.

      1. Generally being drunk does not absolve one of responsibility when it comes to criminal and civil liability. It also does not immunize people from things such as consenting to a search or even waiving certain rights such as Miranda.
        >>>>>>>>>>>>>>>>>>>>
        it does if you’re a woman

        >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
        When it comes to sexual contact being drunk also doesn’t immediately mean a party cannot consent. It goes into the matrix to determine ability to consent, but just being under the influence of alcohol and/or drugs is not in of itself enough.
        >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

        Doesn’t matter, we’re at the point where any sex with a woman who has had anything to drink = rape (but not the reverse)

  5. ?the argument that someone could have done more to protect herself (even where factually accurate) is problematic because 1) that can be true of most crimes and torts and 2) it tells us nothing about what level of precaution is actually optimal at the societal level?

    This is remarkably dumb. Usually, the fact that your argument applies just as well in lots of other similar situations is thought to be good confirmation that it’s a solid argument of general application, not a one off speculative Hail Mary that you’ve dreamed up on the spur of the moment.

    And usually you have to accept the first order conclusion that there is a problem, before you move on to consider the second order question of what to do about it.

    So, back on Planet Earth, the reminder that it is unwise to get yourself so drunk that you can’t look out for yourself is well worth mentioning to young girls going to live away from home for the first time.

    1. You are calling an accomplished scholar who has carefully studied this issue “dumb”.

      Even if you think she is wrong, she clearly is not dumb.

      1. I think he’s saying that it’s a dumb argument (FWIW, I agree), not that Prof. Manta is a dumb person. I’m sure the Conspirators have considered many of my statements and arguments dumb over the years–indeed Prof. Kerr has been openly derisive on occasion–even though I went to just as good as good schools as any of them and have had a successful professional career. I don’t take it personally; people disagree sometimes.

      2. Intellectuals are just as susceptible to dumb ideas as are the common people. Indeed in Orwell’s opinion, more so.

        1. It’s a basic problem: The smarter you are, the better you are at rationalizing stupid things. The ability to distinguish between rationality and rationalizing is largely orthogonal to intelligence, and modern academia might actually be working against it.

        2. Yes, “Some ideas are so stupid that only intellectuals believe them.” is proven every day.

  6. the argument that someone could have done more to protect herself (even where factually accurate) is problematic because 1) that can be true of most crimes and torts

    For a significant chunk of the Republican base, this is a feature, not a bug. They have the wealth and power necessary to keep themselves safe in Hobbesian “war of all against all” and covet the ability to prey on others not similar situated on the grounds that their inability to defend themselves makes it all right.

    Republican “law and order” is increasingly about dividing society into two groups: one which is protected by the law, but not bound by it, and one which is bound by the law, but not protected by it.

    1. American college students are amongst the most privileged people on Earth, living in just about the safest places on Earth.

    2. Meanwhile back on Earth, half of humanity is living in terrible conditions being lead by Firsts Among Equals who were given the power to destroy the elites you want to destroy.

      1. The fact you consider expecting elites to obey the law to be equivalent to destroying them just emphasizes my point.

        1. Your point was that you’re a Duchess complaining about how hard your mattress is. You are why the deplorables vote for Trump.

    3. That may be the dumbest thing I’ve ever read here (non-RALK)

  7. I am troubled that Neomi wrote that “if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice”. For one, this potentially equates drunk dating with drunk driving in the sense that we should hold someone responsible (morally? legally? it’s unclear) if the person gets raped similarly to how we would condemn someone (both morally and legally) for hitting someone with her car while drunk. But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does, and implying otherwise is wrong.

    A neat bit of sophistry. The drunk driving analogy is Irina Manta’s own invention, so she can make an irrelevant distinction between cases where you may harm someone else, and cases where you may come to harm. But that is not Neomi Rao’s point at all – which is why she didn’t make it. If you drink to excess (or drug) you make yourself vulnerable – to bad humans, but also to all sorts of other harms. You can fall down and crack your head. You can fall out of a window. You can overdose. You can stumble out into the road and get run down. You can try to walk home in a blizzard and die of hypothermia. Drinking until you’re incapable doesn’t make you a bad person it makes you a helpless person. And unless someone spikes your drink, you’re responsible for getting yourself into that condition.

    1. Who’s responsible if you get drunk and decide to climb into the tiger enclosure in the zoo ? The tiger ?

      If there’s another human who takes advantage of your self induced helplesness and does you harm, then he’s 100% morally and legally responsible for his crime. But that doesn’t stop you being responsible for making yourself vulnerable. Your responsibility doesn’t diminish the responsibilty of the perp, any more than you being gang raped by 8 people allows each rapist to claim he’s only 12.5% responsible for his crime.

      But encouraging college students to imagine they’re still 3 years old and responsible for nothing is…what’s that word so beloved of progressive word salad merchants…oh yes, problematic.

      1. The key point here is that people very seldom drink to the point of helplessness surrounded by sober people. What we’re talking about is like somebody entering a demolition derby where you’re required to get drunk to compete, and then complaining that somebody else rear ended you.

        It can’t just be one party that’s absolved of their choices for being drunk, and the other is fully culpable despite being just as drunk.

        1. People seldom drink to helplessness surrounded by sober people, but many women can drink to the point of helplessness surrounded by much less drunk men who have consumed the same number of drinks. Body mass differences matter a lot.

          “Lock your car door” is still a very appropriate analogy.

          1. I suppose experiences vary, but my experience in college was that men were much more likely to get shit-faced drunk than the women, generally because they would drink more than the women. Indeed, men tended to engage in a wide range of risky behavior more and with more gusto than women. So, yes, the average woman can put away less drinks than the average man for an equivalent level of drunkenness, but no individual is perfectly average, and most adults learn to self-regulate.

            No, none of this is to absolve the rapist of his responsibility for raping. (Though we shoudln’t infantile women by supposing any sex or even just regretted sex with a drunk woman is rape.)

            1. I would keep in mind that the definition of “rape” has gotten pretty far from what it was when I was in college back in the Pleistocene.

              The sort of “rape” we’re talking about here isn’t necessarily rape rape, it’s a sort of statutory rape where the parties both consented at the time, but that consent doesn’t count because of intoxication.

              But only for the woman, of course. The man is still guilty, even if equally drunk.

              1. That may be what happens in university kangaroo courts these days, but does it happen in real courts ?

                By which I mean actual conviction rather than a “merely” a long investigation followed by no indictment.

              2. Brett, plenty of campus rape is forcible. And sex with an unconscious person has ALWAYS been considered rape.

                1. “Brett, plenty of campus rape is forcible…”

                  I assume that’s why he said, “…isn’t necessarily rape rape”

                  And of course, many schools consider someone “unable to consent” well short of unconsciousness.

                2. There would have to BE plenty of campus rape for plenty of it to be forcible. As it is, the last time I looked college campuses were about the safest place around. Almost all of the supposed “rape” on college campuses isn’t rape rape, it’s some girl changed her mind after the fact “rape”.

                  And the rate has actually been trending down, not up.

                  It’s the usual: The definition is being broadened to pretend that a problem that’s going away is actually reaching a fever pitch.

          2. I’m not buyin’ it. Body mass differences are well understood including by college age women. No one puts a gun to their heads and says they have to match their male counterparts drink for drink just like no one compels or even expects the 98 lb male journalism major to match the varsity linebacker drink for drink.

            I’m going to want to see actual evidence before accepting your blind assertion that women are statistically more drunk than men. Especially since the only data we have – police arrest data – show that on average, men have the higher BAC levels.

  8. Although the first four give it a run for their money, the fifth point here strikes me as the stupidest. If we’re going to criticize people for not coming forward sua sponte to abase themselves for thinking unapproved thoughts in college, we might as well give up on the prospect of civil discourse.

  9. When i see the MSM go after bernie sanders and try to force him to resign from the senate and to never be seen again, i will take the arguments seriously re: writing while in college.

    1. how about Honeymooning in the USSR?

  10. I see no reason she should have changed her views. Her views back then are perfectly acceptable today. You admitted as much, in noting that people say the same today.

    This boils down to complaining that Republicans had the nerve to nominate somebody who wasn’t the person Democrats would have selected. Nothing more. Not one tiny iota more.

    1. Duh! Democrats don’t have the right to not agree with a judicial nomination and explain why they don’t? What’s your point? That you don’t agree with the people that don’t agree with Rao? Why wouldn’t Republicans consider the nomination of Judge Garland? Did they even have a rationalization as good as the weak sauce offered to oppose Rao?

  11. If you get drunk and destroy property, if you get drunk and say terrible things to your acquaintences, if you get drunk and start a fight, if you get drunk and injure yourself or others, you are held responsible for your decision to drink.

    Why exactly should ‘drunk dating’ make you immune from all criticism?

    1. Because destroying property, saying terrible things, starting a fight, injuring yourself or others, these are all things that are considered bad regardless of your degree of sobriety. Being drunk may reduce your capacity to exercise judgment, but it doesn’t excuse you doing things that you’d clearly know were wrong if you were sober.

      A great deal of ‘rape’ is only called ‘rape’ BECAUSE of that degree of sobriety; Two people get drunk, have consensual sex, but consent while drunk doesn’t count, so it’s ‘rape’.

      But which of them raped which, when they were both drunk?

  12. The drunk driving drunk sex comparison is absolutely valid. Irina like most libs has no argument against it other than the usual sprinkling of feminist bs pixie dust and proclaiming it wrong by edict.

    This is two or three steps down from even Ilya logic. I’m sure Manta has tons of sheepskins and accolades on her wall but If you want this type of writing you could easily hire a recently unemployed Buzzfeeder or any sophomore women’s studies major. Really burnishing that eminent contributor panel with such ‘libertarian’ and ‘distinctive’ thinkers aren’t you Eugene?

  13. “What I’d love is for someone to get it right. Some candidate or appointee to apologize not because a leaked photo had suddenly forced them to, but because they realized the error in their past behaviors . . . .”

    So does this mean that all the Democratic lawprofs who stood loyally beside Bill Clinton while he groped and molested women across the country are going to start speaking up and saying they were wrong? And they’re going to call out the political candidates, from Hillary Clinton and Nancy Pelosi on down, who enabled him? And until they do so, Prof. Manta isn’t going to take them seriously? Of course not. What I don’t understand is why Prof. Manta has such contempt for the readers here that she thinks we don’t see her mendacity and hypocrisy.

  14. Getting seriously drunk is a bad idea for men/boys as well as women/girls. A person, male or female, is much more vulnerable to crime when drunk. That a man is drunk when he is mugged while and leaving a bar in a rough part of town in no way excuses the mugger. But no one would say that cautioning men against getting drunk is encouraging a “robbery culture.”

  15. The attack on Ms. Rao is nothing more than a pre-emptive strike on a potential Supreme Court nominee.

    1. You perceive no chance that a reasonable American might be troubled by the prospect of lifetime appointment for someone bigoted with respect to gays and consequently might wish to examine a judicial candidate’s record and current statements?

      1. For you first timers, by “bigoted”, Arthur means: “espousing the same belief as Barack Obama did when he ran for President”.

        1. In 2008, when Barack Obama was running for president, Rao was writing an article about how Lawrence v. Texas (2003) was wrongly decided and that being gay should still be a felony in Texas and another dozen states.

          I mean, that argument “what Obama believed in 2008” almost always misses the differences in nuance. But this use is particularly bad.

          1. You know, “Lawrence v. Texas was wrongly decided” and “being gay should be illegal” are not the same thing, right?

            One is about constitutional law, the other about policy.

            Not to mention that being gay was never a felony anywhere in the US to begin with.

  16. If there is no point where you can make yourself too drunk to be legally responsible for a decision to drive drunk, or batter someone, or commit rape, because in choosing to make yourself drunk you chose to risk making those bad decisions, then similarly, there should be no point where you can make yourself too drunk to legally be responsible for the decision to consent to sex, because in choosing to make yourself that drunk you chose to risk making those bad decisions.

    If a woman is actually taken against her drunken will, then yes, she was raped. But if she consents after getting herself drunk, then she should be considered to have consented, drunk or not. Her choices are her choices, regardless of the level of alcohol you have voluntarily consumed.

    To hold to the contrary is to demand that women be held less responsible than other adult citizens for their decisions, in which case, logically, they must not be allowed the independence of making decisions that other adult citizens have.

  17. Sorry Irina. This line of argument against Neomi Rao by Democrats is another example in the greatest current display of racism and sexism in modern politics…that of supposedly liberal democrats against any racial minority that dares to espouse conservative views.

    These college writings wouldn’t see real notice except…Neomi’s a minority. And she espouses conservative views. And this combination arouses more vitrol and attention from liberals than anything else. It is…quite blatantly…racist. Just like the Estrada fillibuster, it is the judge’s RACE that is the deciding factor for liberals and their attention. Because they cannot have a minority judge with conservative views.

    Don’t jump on the racist horse.

    1. Not all conservatives are bigots (with respect to gays, in the context of someone who believes decent treatment of gays undermines American society). Not nearly.

      It is becoming increasingly difficult to find a Republican or conservative (or faux libertarian) who does not appease bigots, however.

      1. “Decent treatment of gays” doesn’t mean giving them “marriage” licenses for doing something that is not marriage, nor does it mean telling them their habit of unprotected anal sex which results in the 1% of the population that are gay men comprising 75% of HIV cases is not healthy.

  18. “But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does…”

    Given the new rules nowadays, I’m not sure of that. If you get drunk and consent to sex, causing someone to mistakenly believe that you are sober enough to consent, you are not only putting yourself at risk of rape, but you are placing someone else at risk of punishment for rape.

    1. “But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does…”

      It’s worth unpacking the technique here. Irina Manta introduces an analogy between drunk dating and drunk driving, so that she can draw a distinction between taking reckless risks with your own wellbeing and taking reckless risks with someone else wellbeing. This is a real distinction, obviously, and certainly reflects an important moral point. But it appears in the analogy by design, so that Irina can talk about moral blame, and draw our attention away from the actual point that Rao was making ? that taking reckless risks with your own wellbeing is foolish and that you are responsible for doing so. The drunk driving angle is arm waving to distract us from the point.

      1. But if we pause for a second to reflect, the arm waving is pretty transparent. Because even when we subtract the risks-to-others part of drunk driving, we are still left with drunk driving being a reckless risk to yourself. If you get drunk and wrap yourself around a tree, without harming anyone else, someone who argued that you weren’t responsible would be exposed as an idiot. The fact that for you to suffer date rate there has be another, malevolent, human agent is perfectly irrelevant to Rao’s point. There’s no malevolent human agent when you drunkenly drive into a tree. But you’re still responsible.

        1. And if we pause for an extra second, we can see that Irina’s carefully selected analogy fails even on its own level ? that of assigning moral blame for bad behavior. When you get drunk enough to lose your capacity to consent to sex, you’re also drunk enough to mow someone down with a car. The moral responsibility attached to drunk driving doesn’t only apply if you actually go on to mow someone down. Because by then, by the lights of the date rape argument, you don’t know what you’re doing, including getting into the driver’s seat of a car. The fact that you’ve got yourself drunk enough to pose that risk is enough to make you blameworthy. And if you’re drunk enough to lose all responsibility for consenting to sex, you’re drunk enough to drunk drive. You’ve already passed the threshold for blameworthiness. The fact that your drunkenness finishes up with you getting date raped, rather than finishing up with you mowing someone down, is irrelevant. The blame attaches to your voluntary choice to get drunk to a level where you are out of your own control.

        2. I agree with your points in general, but I’m pointing out that if you become too drunk to consent and instigate sex, you are putting someone else in the position that they might mistakenly believe that you are able to consent. At that point, you are not only harming yourself (and are responsible for such harm) but you are harming the other person as well.

          1. I understand. But some folk eager to follow Irina Manta down her moral-blame-for-risking-harm-to-others rabbit hole might regard the particular risk that you mention as, perhaps, far fetched. The general point – if you want to burrow down there – is that once you get drunk enough to become incapable, you’re already blameworthy for putting other folk at risk of ANY ill you MIGHT cause them as a result of your drunken state. Which includes the possibility of drunk driving, drunk shooting, drunk throwing bottles, and drunk failing to keep an eye on your girlfriend who’s getting raped in the back bedroom at the party. Plus your example. Drunk anything that results in harm to someone else. Drunk aything that might result in harm to someone else.

  19. Baseless cheap shots at Kavanaugh, such as the implication that (motivated) accusations of perjury imply a basis for believing he committed perjury. This sort of partisan side-swiping is unbecoming a serious site.

    1. Irina Manta raped me at some point between 2013 and 2015, but I’m not sure where. I also cannot find anyone to attest to this, but I swear there were people there who knew about it. In fact, I can’t point to anything in my allegation that would allow Irina to defend herself, but who cares. She’s guilty!

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