Did the judge do what his accuser says he did all those years ago? The only answer an honest observer can give is “I don’t know.” Maybe only a few people are in a position to know, and not necessarily with much clarity. People should be careful about making their pronouncements on the basis of a subjective analysis of people’s perceived credibility. Convincing testimonies only make a “he said – she said” a more convincing version of the same polarizing contest of competing stories.
But that won’t stop politicians & writers from continuing to flood the public with opinions. And where opinions abound, arguments are being made. Q: What is the difference between a mere opinion and an argument? A: It is that an opinion can be just a bare claim (e.g., “Alabama will win the National Title this season”), but an argument is when the opinion has reasons that support it (e.g., “Alabama has already been a favorite to win it the last few years, and now they have added something important that they did not have before – a Heisman-caliber QB. So they will surely win it.”).
The sports opinion in this example becomes an argument when I start offering reasons to believe it. Those reasons support the opinion – ideally, anyway. The argument, then, is only as good as the reasons I give, and whether the conclusion follows from them.
You should get into the habit of seeing and analyzing the argument(s) in all of the myriad opinions expressed across media and otherwise. What you will find out is that we are drowning in bad arguments.
The current Supreme Court nominee and his accuser have been front and center in the partisan flame wars for the last week, culminating in the highly-charged dueling testimonies. As the heat has been dialed up on this controversy day-by-day, I have seen some atrocious arguments being made. Below are five of the worst, and what’s so very wrong with them.
A few disclaimers:
(1) I am not picking on people but picking apart arguments. Most of these have been made by more than one person, so no individual’s name is specifically attached to any of them, even though I use specific examples by prominent individuals to illustrate them.
(2) You will note that the examples I use aren’t random social media posts by just anyone. These bad arguments are not just being made in comments sections on the internet. As I show, paid political commentators and persons elected to high offices are making these arguments.
(3) Bad arguments can be found among people identifying on the right wing, on the left wing, and in the middle. The worst arguments that I have heard in this controversy are coming from the Left, but that doesn’t mean I think that conservatives are immune or haven’t made bad arguments of their own. But I don’t see prominent conservative writers making them. In some cases I offer what the conservative version of the same fallacy would look like. If you have heard arguments from the conservative side on this issue that are as bad as or worse than the ones I describe here, please mention them in a comment where this is posted.
(4) I am not bringing down a gavel and presuming to know the truth about who is lying or misremembering. I am not engaging in the kind of subjectivity that I mentioned or practicing amateur psychology. This is about particularly bad arguments that have been polluting the public debate on this controversy.
Without further ado, here are what I think are the five worst arguments I have heard over the course of the last week or so, in no particular order.
1.“Believe women.”
Here’s a reliable rule of thumb. A slogan is not an argument, and if you try to turn a slogan into an argument, it will probably be a bad argument. The phrase “believe women,” then, is not itself an argument. It is an imperative statement. But it represents an argument, whether implied or stated outright. And the argument it represents is that women should be believed when they make allegations against men, and Dr. Ford is a woman making a case against a man (Kavanaugh). Conclusion: we must believe her.
A great example is the Washington Post column in which the writer says that it makes no difference whether it’s a series of women or just one, whether there is evidence, one or more eyewitnesses, etc. It also matters not the credibility of the man denying it. Women simply must always be believed, period. The present case is just another “test,” she writes, to see if we have really evolved as a society and will truly live up to the progressive principle of “believe women.”
The Problem: this argument is crippled by its main premise, which is the imperative in the slogan. To be clear, the main point (conclusion) is that we should believe Dr. Ford in this specific case, but it depends on the premise that we are obligated to believe all women who make an allegation against a man. And for that conclusion, no argument is given nor can be.
Maybe there is a good case for believing her, but it’s not this argument.
The claim that we are obliged to believe any woman’s accusation is manifestly false. Even those shouting the slogan don’t really believe this. As has been pointed out, the strongest advocates of “believe women” typically have not believed the accusers of their favorite politicians, most of whom had far more substance and evidence backing their allegations. Supposed-champion for women Hillary Clinton reportedly went after her husband’s past accusers with extreme prejudice against them.
Whether a particular woman’s allegations against a particular man should be believed depends entirely on, well, the particulars of that case. That’s why every rape case is heard in court independently. Otherwise we could have one massive class-action ruling against all men accused of rape, present and future, thereby saving a lot of time and expense on individual trials. That, of course, is pretty silly. And so is this argument.
Switch it around and imagine those on the other side of the debate were operating by the same reasoning, as I’m sure some people have. The mirror (bad) argument would be: “Men accused of wrongful acts against women are innocent and being smeared, and we are obligated to protect the falsely accused, so you must deem Kavanaugh innocent solely on that basis.
Maybe they could even take to the streets and send groups of idiots to run Democrats out of restaurants and make fools of themselves by repeatedly yelling “We believe the wrongly accused!” If the reasoning is bad on one side, it is equally so on the other.
What lies behind this the foolish form of identity-based values that has been enjoying such unfortunate popularity. One commentator said that in past ages too many women were not believed when accusing men of standing (which is certainly true). To right that wrong, he said, we need to grant believability to all females and the opposite to males. This is dumb, and so is the whole attempt to make a case for one man’s guilt on the basis of his and his accuser’s chromosomes.
2.“His conservative viewpoint shows that he’s anti-woman, and thus demonstrates his guilt.”
Obviously Kavanaugh is conservative in his personal views. He’s an active Roman Catholic and takes traditionally conservative positions on most of the divisive moral questions of the day. His judicial philosophy is more “originalist” so he is out of step with the “progressive” approach to the Constitution.
Because of all of that, so goes this argument, he’s clearly not enthusiastic about abortion-rights, meaning that he is against women. And if he is anti-woman, then he is certainly the kind of man who most likely sexually assaulted the accuser.
Such was strongly implied by that emerging genius of the Senate, Mazie Hirono of Hawaii. CNN tweeted her response to a question by Jake Tapper about Kavanaugh’s denial, which was,
“I put his denial in the context of everything that I know about him in terms of how he approaches his cases.”
Imagine a system of justice in which your judge and/or jury took primarily into consideration your political or religious affiliation, or your views on any number of topics, as opposed to the specifics of the case for which you were being tried.
This is an abominably bad argument. If we are being honest about it, there is far more likelihood of sexual misbehavior among those whose sexual ethics and lifestyle are “progressive” than those committed to traditional Christian sexual morality. You could make the case that a wanton philanderer would have self-interested reasons to be zealously pro-abortion rather than pro-life.
3.“This issue is too important not to believe her (and therefore punish him).”
Our society loves a good ridealong on a moral bandwagon. Issues lie dormant for decades and become wildly popular overnight. Sexual abuse, assault and manipulation of women by predatory men is perennially present and always immoral. It always was and will be. But just recently everyone noticed it, as if suddenly, and decided it was a serious matter. Another bandwagon left the station at blinding speed.
Now in truth I credit our present society, as confused as it is most of the time, for latching onto something truly important and being vocal about it. It’s long, long overdue. But the problem with bandwagon moral causes is that they don’t run deep and aren’t well thought out. They are more like rallies and their advocates can turn into crazed, irrational mobs (see again the jackassery of those who are yelling people out of restaurants).
Mobs need witches to hunt. So if you commit the wrong sin at the wrong social moment, you suffer a penalty ten times worse due to the moral climate at that moment. Just ask a whole slew of prominent men now out of politics, entertainment & business. Their immoral treatment of women got them caught in the headlights of the “#MeToo” moment, and rightly so for those who are clearly guilty. The problem is not their being punished, but the lack of it for so many decades prior when everyone knew it was going on.
But what about those who are not exactly Harvey Weinstein – those not so clearly guilty? Should innocent men “take one for the team” in furtherance of the cause? Should an entirely uncertain allegation default to a “guilty” verdict because of the importance of the issue overall? According to one feminist writer the accusation alone “is a #MeToo victory – however it turns out.” The cause, she believes, matters more than the truth in this (or any) specific case.
The comparison of this attitude with the old Soviet show trials has not gone unnoticed. Solzhenitsyn once said that Soviet trials were generally more concerned with whether the accused stood for the right things (the party and the furthering of class struggle) than his actual guilt or innocence in the specific case at hand.
As one New York Times writer put it, “much of the public debate has been less about whether her accusations are true than whether they are relevant.” What?? How can it be about anything more than whether the accusations are true?
If this doesn’t worry you, it should. It’s a bad argument and scary reasoning. It says that we are justified in finding a man guilty in order, basically, to make an example of him for the sake of a greater moral crusade. God help the innocent.
4.“We should believe her because she’s telling the truth.”
The only reason I include such a blatant fallacy is that I heard this uttered more than once by people who should know better. Here another senator brings shame upon the office she serves by giving voice to such nonsense. New York’s Kirsten Gilibrand told the press, “I believe Dr. Blasey Ford because she’s telling the truth. You know it by her story.”
Even though she went on to site things that at least constitute sensible and possible reasons one might believe her (i.e., she reportely mentioned the incident without naming names during a therapy session some years ago), the senator led with these words that can only be characterized as a textbook case of “begging the question.”
And if you listen to the constant chatter you will hear more of this. Her story itself makes the story true. This is redundant and circular. You might as well say “Her story is true on account of it being true.”
Whether the story is true is the very thing in question, and frankly the only issue that really matters. To cite as your premise the fact that the story is true is to presuppose the very thing you need to demonstrate. The same kind of reasoning on the other side would be just as question-begging: “I believe Judge Kavanaugh because he’s telling the truth.”
Look, we all commit fallacies from time to time. But this one is embarrassing.
5.“We can judge his guilt on the basis of how he acts toward the accuser now & in the upcoming days.”
Politics is a game of sorts. And the game isn’t always fair. One slippery move is an attempt to argue that the minute details of Kavanaugh’s response to the allegations, including how he appears or his tone of voice, must be scrutinized to see whether he was sensitive enough toward her to pass our test of his sensitivity to women’s plights.
Think of the challenge of winning a game that is rigged in this way. If you say anything (or maybe just imply it) that reflects negatively on the accuser – such as implying that she has had a failure of memory, or has lied, has political motives, or was too inebriated to recall clearly – these negative things will only serve do demonstrate your anti-woman hostility toward her. And that points to your guilt.
An accused person who believes himself innocent, will – naturally enough – deny the charge. But according to this reasoning, by denying it (or in the act of denying it), he shows he is indifferent to her suffering, thereby demonstrating an antipathy toward women that points to his guilt.
This no-win scenario led one writer from the Brookings Institution to the grim assessment that Kavanaugh was facing “optics” that are too negative to overcome, that the usual arguments of defense are “off-limits” to him, since he can’t “seek to discredit a woman who purports to have suffered a sexual-assault at his hands.” Thus if he is innocent, he loses the game anyway since the deck is stacked against him.
Obviously the conclusion of this argument (Kavanaugh’s guilt) does not follow from any untoward attitudes or less-than-polite treatment he might have given her during the controversy.
We should note the effectiveness of this bad reasoning with regard to everyone involved. Kavanaugh was so aware of this dynamic that, as angry as he was in his testimony, he nonetheless refused to say anything remotely negative about his accuser; when pressed, he would only say that he felt bad for her and had no ill will. All of the Republicans on the committee played it the same way, even going so far as to bring in a female to question the accuser on their behalf just to avoid the potential of appearing insensitive toward her in direct interaction with her. When the “optics” are this important, it is to the detriment of the substance of the debate.
The degree to which an accused person displays the appropriate outward sensitivity to an alleged victim says nothing about the guilt or innocence of the accused.
Honorable Mention
In addition to these bad arguments I have presented, I will give the nod to a couple of other contenders.
One is the omnipresent favorite of the “woke” nation, which is that “we can’t trust the word of a straight, white, cis-gender man, since he’s an oppressor by definition.” This fits somewhat with the identity-based reasoning I mentioned already, and I won’t risk insulting the reader’s intelligence belaboring the reasons why it need not be taken seriously. But again, notice how aware the Republican senators were of this way of thinking: they didn’t dare be shown directly questioning the accuser, knowing that their straight, white, cis-gender maleness would, by uspoken rule, cast them as villians in the eyes of so many shallow and inane viewers.
Finally, in the aftermath of the hearing a number of quite predictable opinion pieces have been written about how Kavanaugh’s feisty defense of himself made him wild, unhinged, “Trumpian,” like an uncontrolled madman unfit for such a high position. Forget that a man who fully believes himself to be done wrong in such an egregious way (as he certainly seems to believe) might be expected to come out “swinging” like this, and that presumably in his decades as a judge, this extraordinary circumstance is the only time people have seen him become so exorcised and emotional.
And once again, you can turn the same reasoning the other direction to see more clearly its ineptitude. Imagine someone analyzing the accuser’s tears, tone, manner of speech, emotion in such a suspicious or conspiratorial way. I realize some people have done so, but not in prominent media outlets. And it is equally bad reasoning.
This is another of the “heads I win, tails you lose” propositions. Whatever you do in a difficult situation, you are wrong. One popular site satirized well this silly response to his testimony. Had the judge demurred, been stoic & unenergized in his defense, I would have thought him far more likely to be guilty, as would everyone taking issue with his zeal. Most prominent figures accused of similar things in recent years have in fact been fairly lackluster in their responses, making their guilt seem far more likely (though again, it would be a poor argument to conclude their guilt solely on that basis).
None of us can know whose memory is right or wrong, or who is being totally honest. But away at last with the slogans, the virtue-signaling and the thoughtless passing of memes in the place of careful reasoning. If you can’t make a sensible case for something, don’t declare it with such conviction. If the quality of the argument is about a 2, it won’t help that the emotion is dialed up to 10.
