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  • Hu Eliot Young

US Senate hearing Kavanaugh - A Commentary

Judge not lest ye be judged - disagreeing without being disagreeable.


My brother, John and I are often at opposite ends of the political spectrum when we discuss wide ranging topics, in this instance the Supreme Court nomination process south of the border. Below is my initial comment to which my bro responded and then I answered back.


Regardless of our disagreements we remember that an abiding respect for each other does not compel us to question the motives or philosophies of the other. In litigation, the motives of an adverse party are often misperceived as being governed by a desire to do harm and this results in a person being taken away from a sensible position to a reactionary position premised upon retribution for a perceived wrong. The end result is that one allows the other to dictate where and when a battle is fought, totally contra the governing principles set out in the "Art of War". A battle that leads to peace that surpasses understanding should not be predicated upon "an eye for an eye". Okay, enough moralizing...


It is said that a hallmark of wisdom is emotional equilibrium; the ability to not lose one’s  focus or react in anger notwithstanding serious allegations or outrageous attacks on one’s character. To retain one’s dignity despite indignities and remain measured in one’ responses is not merely reminiscent of the gallant figurative son, extolled in Rudyard Kipling’s poem, “If”.


Modulating one’s tone is not merely an admirable quality but also a necessary character trait for one nominated as a judicial candidate to a lifetime appointment to the highest court of the most powerful country in the world.


The number of interruptions of questions from Democratic senators by judge Kavanaugh manifested a lack of respect for the institution and implicitly suggested that he was entitled to lecture the institution rather than submit to proper questions, properly asked. The arrogance shown by judge Kavanaugh in asking questions such as “do you like beer?” of the senate panel member (for which he subsequently duly apologized and for which the panel member graciously accepted) does not exonerate him in terms of the lack of capacity demonstrated in failing to restrain himself at first instance. When asked about his drinking habits in high school, the judge went on a lengthy dissertation of his many accomplishments both academic and athletic. (A nice answer, sir, but what question were you answering? I would prefer you answer the question asked, not one you would have preferred to have been asked).


The only inference logically drawn from his demeanour is that he believed himself entitled to lecture and scold the panel, that his condescension towards them was predicated upon feelings of superiority, not exactly unknown in the dystopian trumpian world of American politics today.


Do you respect this institution and this committee, sir? You know, the one you’ve stated in your opening remarks includes 10 of 21 members whom you’ve just labelled as part of a conspiracy, a political hit job, (meting out) vengeance on behalf of the Clintons (?!)

If you do have such respect, do you think it would be alright to accord it respect by not continually interrupting the person asking you a question?


In your time on the bench, when a lawyer asked a witness a “yes or no” question, and received, instead, a non responsive answer, did you not consider that indicative of evasiveness, symptomatic of a witness who wished to conceal a true response?


If appointed to the highest court of the land, how do you expect parties and counsel who appear before you to truly believe you are not partisan and that there is no apprehension of bias when you lectured this institution on the conspiracy to bring you down as part of a plot and political hit? Were your words and phrases not indicia of more than a scintilla of crapola not in accord with the rules of natural justice?


While the hearings are part of a nomination and due diligence process and not a trial and there is no burden of proof beyond a reasonable doubt, surely doubts are indubitably revealed when one examines the visual and written record of what transpired in the questioning conducted. The symbolic box ascribed with Pandora's name has been opened but hope for the process has evaporated.


TO WHICH MY BROTHER, JOHN REPLIED, Yiddish is a language that has a lot of words that express personality qualities and types, particularly loser types or mean types or conniving types. These words often combine humor with rueful sarcasm and cynical realism about the vagaries of the human condition.


One of those words is “chutzpah.” You’re probably familiar with it, because it passed into the American vernacular some time ago. It is usually translated as something like “audacity,” and it most often contains an element of outrageous gall [my emphasis]:


Leo Rosten in The Joys of Yiddish defines chutzpah as “gall, brazen nerve, effrontery, incredible ‘guts’, presumption plus arrogance such as no other word and no other language can do justice to”. In this sense, chutzpah expresses both strong disapproval and condemnation. In the same work, Rosten also defines the term as “that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan”. Chutzpah amounts to a total denial of personal responsibility, which renders others speechless and incredulous…


The left’s attack on Kavanaugh involves the following, which I think sets a new standard for chutzpah: take a man with a sterling public record during his entire life, mount an attack on his integrity that involves an unsubstantiated, uncorroborated, impossible-to-defend-against charge of sexual attack (up to and including gang rape), and do it at the pinnacle of his career, unleashing a social media war against him of the most vicious kind, including death threats towards him and his family. Do that publicly while cloaking yourself in self-aggrandizing sanctity, and make him sit there and listen.


But that’s not the “chutzpah” part, although that does take some chutzpah. The real chutzpah part is this: if he acts at all angry in his response to being defamed in that way, say that his anger shows that he doesn’t have the temperament to be a justice, despite the fact that it is well-documented that he has shown an exemplary judicial temperament for his entire previous career as a judge.


And one more thing: if he hadn’t shown anger in response to these extreme charges against him and their public airing in the United States Senate, accuse him of lacking the appropriate outrage that would have been the sure mark of an innocent man. Does any fair-minded person doubt that would have been the outcome, had Kavanaugh not been angry?


“Chutzpah” is too light a word to describe that kind of ploy.


But still another word for what the left has done to Kavanaugh—a more technical and academic one—is that they placed him in a “double bind,” which is:


…a situation in which a successful response to one message results in a failed response to the other (and vice versa), so that the person will automatically be wrong regardless of response. The double bind occurs when the person cannot confront the inherent dilemma, and therefore can neither resolve it nor opt out of the situation…


Thus, the essence of a double bind is two conflicting demands, each on a different logical level, neither of which can be ignored or escaped. This leaves the subject torn both ways, so that whichever demand they try to meet, the other demand cannot be met.


So Kavanaugh’s anger elicited intense criticism, and lack of anger would have done the same. I doubt that Judge Kavanaugh anticipated the nature of the bind he was in, unless he’s unusually psychologically astute. But even if he had foreseen it and tried to prepare for it, it’s nearly impossible to find a way out of a double bind and its contradictory demands.


Some of you may recall my previous discussion of the importance of understanding the difference between process arguments and content arguments (please see this post for more detail). If you are caught in a double bind—such as the dilemma Kavanaugh faced—it is best to “go process” and address the underlying double bind itself rather than just the content of the argument at hand. To “go process” takes an unusual amount of psychological and communicative savvy, and an understanding of the content-process distinction.


Most people don’t have that knowledge. But I think it might have helped had Kavanaugh said something like this:


You may think I may sound outraged and angry, and no doubt some people will criticize me for that. But I believe that any person who knows that he or she is innocent and yet is accused of the kind of offenses I’ve been accused of here today would feel and express the same very controlled anger. What’s more, if I showed no such emotion when faced with these charges, charges that violate everything I hold dear, you would criticize me just as strongly for not showing the appropriate emotion, and you would blame me for that. It’s a classic double bind, where no reaction is okay and all reactions are fodder for the criticism mill.


When I say that sort of statement might have helped Kavanaugh, I don’t mean it would have prevented the criticism. He would have been criticized for saying what I’ve suggested, too. But still, I have noticed that “going process” and revealing the underlying game being played by the opposition is usually a good tactic, because there may be some listeners who will then understand what’s happening. The tactic of going process offers the only chance of breaking the Gordian knot of the double-bind.


It’s also a tactic that often surprises the opposition; they rarely expect it. But to be successful, the person making the statement has to have either anticipated the double bind and the form it will take, or at least must be able to recognize the double bind while it’s in progress, which is also very difficult to do. One of the many goals of placing someone in a double bind is to confuse the person in real time so that, unless he/she is quite sophisticated about human communication patterns, that person will fail to recognize what’s going on.


Another aspect of the criticism of Kavanaugh’s anger is that it delegitimizes what is felt to be a typically masculine response. Even controlled and highly appropriate verbal anger, when exhibited by a man (a white man in particular), will now be labeled inappropriate and frightening and disqualifying as an example of toxic masculinity—if the man is on the non-leftist side of the political fence, that is.


[ADDENDUM: It is also true that you could look at his dilemma as a triple or even a quadruple bind. Probably even more than that.


“Double bind” is the technical term, though, for this general type of dilemma.


And it is absolutely true that Kavanaugh was also criticized for crying—thereby indicating that there was no response of his that wouldn’t have been criticized. In my suggested speech for him, I think he could even have added that tearing up and/or crying would be criticized, too.


Oh, and had he actually added that, he would have been criticized for being a whiny complainer.


The basic point is that all responses are forbidden and there are no choices left except to point out the game.]


MY RESPONSE TO MY BROTHER-AND THE FINAL WORDS WERE: I merely point out my observations from a legal perspective in relation to a witness who continued to interrupt his questioners (hardly interrogators) as if he were the person asking the questions and entitled to responses (“Do you like beer” etc) as if he were in charge. Not a great idea in my mind for a great thinker. It is easy to criticize but it is also easy to excuse depending on one’s perspective. I don’t care if he drank to excess when he was a kid (unless he is trying to be coy about whether it is possible he blacked out); that I get. The question is whether he is lacking in candour and being less than forthright about it. Speaking about Yiddish and Hebrew and jewish traditions generally, the great jurist, Felix Cohen wrote about the use of verb conjugations to and adjectives to tell an observer about the heart and soul of a speaker. He opined that we speak well of those with whom we identify, less well of those of whom we are uncertain and well, those who do not share our “take” on things, are “outgrouped.”

an example:

I am firm

You are obstinate

He is stubborn and

They are pigheaded.


I hesitate to consider what he would think of a SC nominee who began his commentary by pointing out how his attackers were vindictive Clinton apologists intent on a political hit etc. Such screed like commentary is not exactly the type of humility and sense of time and place that instills confidence in such a speaker’s impartiality for the bench of the highest court of the land. It is one thing to forgive a person who is accused in the most outrageous manner of assorted sordid engagements but if a person is unable to rise above the slings and arrows and instead goes into the alley to fight on the same level he perceives those who attack him to be on, is this the kind of leadership needed? Hmm. Hu

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