First: Neither you nor I know who’s telling the truth, who’s honestly misremembering, who’s dissembling, and who’s doing some combination of all three. But if we want to think about what should happen next in the real world, it pays to think first about what should happen next in a hypothetical world where we can somehow be sure that Professor Ford’s account is 100% accurate. In that world, we need to ask this question: Should a night of bad behavior at age 17 be punished by a career derailment at age 53 (assuming there’s been no punishment in the interim)?
The answer, of course, depends on the benefits and costs of that punishment.
First the benefits: Punishments are beneficial when they deter other bad behavior. So we should embrace this punishment only insofar as we believe that some future 17 year old boy will be deterred from committing sexual assualt by the prospect of a career derailment 35 years down the line. How big is that deterrent effect? Not only do I have no idea; I also have no idea how to start forming an idea. That is, I can’t think of any good empirical strategy for measuring such a deterrent effect. We have good data on the deterrent effect of imprisonment, of capital punishment, and of fines — but not, as far as I know, on the deterrent effect of long-delayed career consequences. (I’ll be very glad if any reader can prove me wrong about this.) I do, however, have a guess. My guess is that for boys of the social milieu that Kavanaugh came from, this effect could loom pretty large. True, no 17 year old really expects to be nominated to the Supreme Court some day, but plenty of 17 year olds at prep schools have lavish dreams of future success, and seem to care quite a bit about preserving that future. If my guess is right, the benefits of killing this nomination might be pretty big.
Next, the costs: The cost of derailing a man’s career is that his talents go to waste. The extent of this cost depends on who’s next in line to replace him. I can think of cases where the effect is likely to have been pretty large. If Ataturk, Churchill or Reagan — or Albert Einstein or Andre Weil or Paul Samuelson — had been drummed out of his profession and replaced by the next best alternative, I expect that the world would now be a much worse place. I expect the same is true of many CEOs. But I think it’s less likely to be true of Supreme Court Justices. For one thing, the markets for CEOS and scientists is flexible enough to create new positions, so that if a new great scientist comes along there’s no need to displace an old one. But the number of Supreme Court seats is always fixed. If there are three great candidates and only one vacancy, it costs very little to eliminate one of the candidates and replace him with another. (Of course, given the vagaries of the political season, any substitute for Kavanaugh might be ideologically very different, and quite probably in a direction that will make me unhappy — but my personal unhappiness is not the right standard here.)
Bottom line (always assuming that we know Ford’s story to be accurate): Some might be tempted to argue that 35 years of good behavior are enough to outweigh a single bad act at age 17. But that comes perilously close to making this an argument about what’s fair to Kavanaugh, when there are in fact much bigger issues at stake. The question is not whether Kavanaugh deserves to be punished; it’s whether punishing him will yield significant benefits (in the form of deterrence) at an acceptable cost. I don’t know how to answer that question, but if I had to guess, I’d guess that the answer is yes. I’d love to have a better measure though.
I think we should also remember that no one ‘deserves’ a public position like Supreme Court Justice. In many ways it is a symbolic position and your public persona is just as important as who you actually are. If you don’t like what you have come to stand for in the public eye you can withdraw from public life. But as long as you benefit from being a symbol, you have to accept that your symbolic persona doesn’t completely belong to you. If K comes to represent sexual assault, it almost says more about the public than the man himself, but it still matters.
It’s true that a buried scandal can derail your shot at greatness, but it seems to kick in only when you get close to the *very* top.
Kavanaugh probably could have lived out his career quietly as a federal judge, but his accuser only came forward when he was nominated to the Supreme Court. Or consider how much dirt existed on Trump that was only unearthed when he was close to becoming President.
An ambitious prep school kid might be deterred if they really, actually thought they could end up as President or as Supreme Court justice, but if they would be happy “only” being a federal judge, or a famous rich person like Trump, they might reasonably calculate that the scandal wouldn’t come to light if they only got to that level.
Also, isn’t this ignoring the possibility that if Brett Kavanaugh really did what Ford says he did, he would be a bad Supreme Court justice?
To the extent that the job allows for moral judgments within the bounds of interpreting the law, if Kavanaugh did it (and continues to lie about it now), his moral compass may be off.
I have nothing to add about possible deterrence, other than to concur that it is the relevant benefit to consider. On costs, though, I have two comments:
First, you already consider the most important point: the ex-ante marginal benefit of the best vs. second best potential candidates for the Supreme Court is minuscule. In fact, given the political dealings with any such appointment, the second-best appointee from a politician’s standpoint may well be the first-best justice from the public’s perspective.
Second, I think that “derail” is too strong. Kavanaugh’s fallback is a cushy circuit court position, one from which he can continue to use his talents and (it seems) he is in no danger of losing regardless of his culpability in this case.
The deterrent is not just on 17 yr old high school kids. Anyone of any age gets the message that such behaviour may have consequences down the road.
The benefits side hinges on the assumption that the 17 year old in the exclusive prep school realizes what punishment may do. I disagree. Only a handful of 17 year olds realize that, even those in prep schools. Even more, many (not Kavanaugh) of such exclusive prep school students rely on their rich parents to bail them out with highly priced lawyers.
Also I disagree with the premise of the analysis: “…what should happen next in a hypothetical world where we can somehow be sure that Professor Ford’s account is 100% accurate…”
Why? Why not the converse? How about deterring completely false accusations? What if Ford is totally lying? What would be a deterrence for such a thing? We have one sector of examples: Title IX of sexual misconduct investigations. Yes, many accusations were and are true, but many are also false. And many careers have been derailed because of completely false Title IX accusations.
Is the hypothetical that we live in a world where we can be 100% confident of the true story of events that happened 35 years ago with only two witnesses contradicting each other? Living in that world would have a huge deterrent effect on all crime, few would escape unpunished.
If the hypothetical is limited to being be certain about the facts of this case, it would seem difficult to show positive effects in the form of deterrence of others for whom that certainty would not apply. In the era of #metoo, everyone is already fully aware of the power of accusations, even unsubstantiated. One more scalp is unlikely to change any individual teenagers actions.
But even assuming we did know the facts, punishment in this specific case has other costs, in the form of rewarding bad behavior by the other actors in this story. One thing we do know for sure is that these accusations were kept hidden until politically convenient – first by the victim for years, then by senate members who failed to report it to law enforcement for months. If absolutely and provably true, this should have been handled years ago; ideally immediately, but failing that at any of the steps in his career as a public figure.
The timing here is clearly political tactic, that if successful increases the incentive to use it again. And that has to be weighed in the balance as well.
Kavanaugh was supposedly “blacked-out drunk” at the time of the incident; is there reason to believe that punishing him now will a) deter blacked-out drunks from such behaviors or b) will deter teenagers from drinking too much?
I think both are dubious propositions.
I think Bennett has it right. This isn’t about punishment or deterrence, it’s about choosing a good Supreme Court justice.
“I did X last week and I got away with it”
One consequence of this, and the Golden State killer, is that, for some crime, you’ve never “got away with it” until you’re dead. And this case will help to secure that attitude in the public mind.
Times have changed and reckoning has a long arm now.
Daniel R Grayson (and Bennett): I half agree with you.
1) I absolutely agree that this shouldn’t be about punishment, because punishment serves no purpose.
2) I absolutely agree that this is at least partly about choosing a good Supreme Court justice.
3) But if we care about deterrence, and if this thing has a signficant impact on deterrence, then this should also be about deterrence in the sense that deterrence should count in the cost-benefit analysis. By way of an extreme analogy, suppose you could somehow know that confirming Kavanaugh would cause a nuclear accident that destroys the city of Pittsburgh. That’s got nothing to do with his performance as a justice, but it’s still something we should care about. Likewise, if confirming Kavanaugh will cause a dozen more women to be raped or near-raped, that’s something we should care about.
4) That leaves us with two empirical questions: a) How much deterrence are we talking about? and b) if we don’t confirm Kavanaugh, how much worse will the next nominee be? My whole point (which might have been lost in my wordiness) is that these are the only two things we should care about.
5) With regard to a) How much deterrence are we talking about? I find it plausible that this is substantial but have no idea how to test this guess against data.
6) With regard to b) How much worse will the next nominee be? I find it plausible that the next nominee will be much less to my liking than Kavanaugh, but overall, averaged over many cases like this one, I am not convinced that a second-choice Supreme Court nominee will be much worse than a first-choice nominee.
7) Points 5) and 6) both point in the direction of killing this nomination, but I don’t have a lot of faith that I’ve got these points right. On the other hand, I’m quite committed to a framework where punishment doesn’t matter but deterrence does.
8) I have a feeling that this numbered list might be clearer than my original post.
OK. Working within the constraint of your radical assumption; the assumed benefit of deterrence might well be offset by the loss of the benefits afforded by statutes of limitations which include:
* By the time a stale claim is litigated, a defendant might have lost evidence necessary to disprove the claim.
* Litigation of a long-dormant claim may result in more cruelty than justice.
* Controlling professional accusers
* Trolling
* Prevent fraud
Manfred said ” I disagree with the premise of the analysis: “…what should happen next in a hypothetical world where we can somehow be sure that Professor Ford’s account is 100% accurate…”
Such hypotheticals can be very useful. If we look at both options – we know the allegation is true and we know the allegation is false – and we arrive at the same conclusion, say we should proceed with appointing the judge, then we do not need to bother answering the question for this purpose.
In this case SL has concluded that probably we should reject the judge if we knew the allegation were true, but what should we do in a world where we knew the allegation were not true? If everyone knew this, then I think we would conclude that we should proceed with the appointment, so in this case the hypothetical has not helped since we do need to determine (or otherwise decide) on the truth if the allegation.
“because punishment serves no purpose.” Other than dterence, presumably.
The purpose of punishment are: specific and general deterrence, incapacitation, rehabilitation, retribution, and restitution. In this case only general deterrence and retribution apply. Deterrence we have discussed, but what about retribution? This reduces crime by removing the desire for personal vengeance (assault, homicide…). Also, if the punishment is deemed appropriate the public trust the system is working properly and derive satisfaction from this.
Landsburg #11 and Harold #13:
You talk about deterrence. What about the deterrence for women to lie? What if we knew that the Kavanaugh accuser lies, and that deterring her lie (and the lies of many other women) may save the lives and careers of 10,000 men?
This comes “perilously close” to an argument that we need not wait for a Kavanagh moment, let’s simply make random charges against anyone whenever the perceived deterrent value is sufficient. I’d challenge the “pure consequentialists” here to give this notion a whole-hearted endorsement.
Likewise for the result that justice depends on the “social milieu” from which one hails – perhaps in the opposite way most of us typically think of as troubling…but then that’s the rub with consequentialism isn’t it, it cuts both ways.
In terms of the “good judge” argument, I’m not even sure about the connection between bad (esp. youthful) personal behavior, i.e. how one is tempted to apply the law to oneself, and one’s ability to apply the law to unknown people (or recuse). At the least I bet we all could think of prominent exceptions (of people who did make a big difference).
Of course, Manfred is right, but he doesn’t go far enough. It is silly to discuss the 100% certainty scenario as if it is relevant to this situation. In this situation, as Steve admits in his first sentence, we don’t know with certainty.
Manfred (and Zazooba): There are many issues here. To narrow the focus, I hypothesized a simpler situation with fewer issues, i.e. one in which we know for sure that the accuser is truthful. If you want to deny the hypothesis, you’re off topic.
I object to what appears to be a sleight of hand.
You start by saying we are not 100% certain. I’m with ya there.
Then you say, let’s, as a first step, let’s think about the case where we are 100% certain. OK, a thought experiment based on a false premise; maybe we can learn something, but it will only be a first step based on a false premise, so we can’t reach any conclusions about the Kavanaugh case.
But then, the discussion ends up with a conclusion that supports killing the nomination.
(Granted, the conclusion is hedged and, if you are still paying attention, conditional on the untrue assumption.)
But, the discussion comes off as manipulative, because the reader has been lulled into a world where Kavanaugh is assumed guilty and only a rather narrow issue is debated, so we marinate in an drawn out, rigged, and irrelevant discussion.
If there are going to be five more posts with careful considerations of all the other factors, fine, lets get to it. But this discussion by itself is loaded and doesn’t tell us anything interesting even though, if you aren’t paying careful attention, it seems to reach an anti-Kavanaugh conclusion. (I suspect it doesn’t even point in the direction of killing the nomination because there are probably interactions with the other factors.)
If you genuinely care about the issue you raise in and of itself, fine, but don’t pretend the discussion is seriously illuminative of the Kavanaugh case. It would be better to make up a different scenario to be clear the discussion is too limited to be helpful to the Kavanaugh case.
I reread my post above and think it is too harsh. It should be softened to be a stern warning.
SL gets points for tact.
Manfred #14 “What if we knew that the Kavanaugh accuser lies,”
I believe that in this hypothetical world we would not prevent the appointment. There appear to be very few positives (or none) in allowing known false accusations to determine the outcome. Unfortunately that is a different outcome from SL’s hypothetical, so we are left with trying to determine the veracity of the accusation before deciding if it should affect the outcome, which is pretty much where most people started. However, it could have come out the other way.
I don’t know if another hypothetical will be more enlightening or confusing, but I found myself wondering if my male and political biases were influencing my judgment. So I tried to come up with an analogous hypothetical with the genders and ideologies reversed.
However, a female sexually assaulting a male doesn’t seem like the best analogy to a male sexually assaulting a female, because the former is infrequent and they likely carry different emotional, and certainly biological, consequences. A better analogy seems to be a female falsely accusing a male of rape. That’s very serious, and it happens. The accused could face the threat of prison, expulsion from school, extensive public shaming, etc.
So my analogous hypothetical is this: suppose very late in the SCOTUS confirmation process, someone with a conservative ideology came forward and claimed that while in high school, Sonia Sotomayor had falsely accused him of rape. Should that derail the confirmation? Would doing so deter other would-be false accusers?
You claim “we can’t tell who’s telling the truth.” Wrong.
The trials of human evolution through the iterated prisoners’ dilemma, condensed into culture and codified into law, tell us.
First there are external correlatives of credibility: http://thefederalist.com/2018/09/25/10-red-flags-sexual-assault-claims-employment-lawyer/
Thus the law has Due process, as well as concepts of “stare decisis” and repose. Certainty has value, which is why there are statutes of limitation. That answers your lightweight assertion that you “don’t know the value of deterrence.” But I bet big bucks at long odds you argue against any possibility of deterrence from the death penalty.
Finally, allegations – with huge red flags – of rudeness at 17 are shameless conflated with rape charges, for cheap political gain.
Don’t feign uncertainty.
Hypotheticals are fun, but what if a more relevant starting point is a claim that is (most likely) *unknowable and unverifiable*? From there, again I’m not sure why one’s opinion of the truthfulness of the claim matter; if the standard is strictly cost-benefit / deterrence and has nothing to do with “what’s fair to the accused”, random baseless charges would seem to fit the bill just as well. And if fairness is a consideration, when / how should such a claim be brought?
Your original argument does not anywhere estimate the benefit of deterrence. In other words, if you replace “sexual assault” by “shoplifting,” the argument is unaffected. The benefits of deterring shoplifting are high, and the costs of replacing Kavanaugh with someone else are low.
You do allude to the costs in point (3) of your longer comment.
In the case of sexual assault, you judge that the deterrent benefit is probably higher than the cost of rejecting a candidate. In the case of shoplifting, my guess is that you think the deterrent effect is lower.
If a back-of-the-envelope calculation showed that the benefit of deterring shoplifting was higher than the cost of rejecting a supreme court candidate, would you similarly favor rejecting shoplifters?
Part of the reason I ask is that I suspect that is true. Since there are only nine positions total, and estimates of candidate suitability are very noisy, I would suspect that the actual difference between the highest-estimated candidate and the (say) fifth-highest-estimated candidate is very small (though the difference in estimates might not appear to be small).
Although, I should say, the difference between the ninth-highest (since presumably the eight best-estiamted are already appointed) and the twelfth is very small.
For other positions, I would think the cost outweighs the deterrent benefit. For professor, say, there are already (making up a number) 10,000 appointed, and if Kavanaugh were the 100th best, the cost of appointing the 10,001st best instead of the 100th best would be high.
But 9th vs. 15th … I can’t see there being any appreciable difference there.
That changes, of course, if Kavanaugh is seen to be a superstar. I am assuming he’s not.
One other point: this argument addresses the question, “Should we declare in advance that people who committed sexual assault at age 17 should be disqualified for the supreme court?”
As I see it, the real question is, “Should we declare retroactively that people who committed a bad act sometime in the past be arbitrarily disqualified for good jobs in the future, based on popular opinion and political whim?”
On that question, I am sure the costs outweigh the benefits. Offenders (and there would be some undeterred bad actors, albeit fewer) would realize that their career options are limited, and might not even become lawyers at all, if they see that they will be rejected for senior positions (or, even, disbarred).
One of the costs of the precedent of rejecting Kavanaugh is that other offenders — even perpetrators of much lesser acts, and even those who have been punished and are now clean — will not build their personal capital. This is especially true in the absence of a clear rule for what’s OK and what’s not.
In fact, there are people today who would be rejected for things they SAID. Controversial as those things are, I would argue that society has benefited from them being spoken (even if they’re radically wrong), and millions of other people have been deterred from speaking freely on similar issues, and the cost of that is very high.
In the absence of a specific rule, I argue that the cost of rejecting Kavanaugh is much higher than just the loss of his services, because it deters too much more than just sexual assault.
Although now it occurs to me that there’s a counterargument. If Kavanaugh knew in advance that he would be rejected for the Supreme Court, it would have reduced his incentive to be a good judge. Maybe offenders having only a vague, probabilistic idea of how one’s bad acts will affect one’s career is most efficient after all.
But that argument is weaker when standards change over time. Being in favor of segregation in Alabama in the fifties was the majority view. The idea that it would disqualify someone for jobs in 2018 would probably have been considered too low a probability to have been much of a deterrent.
From what I read, accusations of sexual assault were taken much less seriously back then than they are now. So the deterrent effect, at the time, of committing that particular bad act would have been smaller than we would like it to be today.
Surely most of the deterrence has already occurred just by this coming out.
Out of respect for your time and my joy of reading this blog, I have never chosen to make a comment here before. But these are good quick and direct response topics. My deeper quest on this topic is about how there is this gap between youth and fully adult, and how this young and impressionable group of individuals need to go have fun on their own without elders or supervision. And how to find enjoyment on a level and even footing, across all backgrounds, even sex (or gender).
I am talking about games as an art form! And trying to teach and impart to our kin certain values much earlier through play and those logic puzzles, social puzzles, and the value of getting things done over this giant muck in politics. This is a game about the role individual actors can play to save and hinder each other through several challenges. With multiple ways to interact and get those gears ticking from the players’ response of “what happened? / Who did whats?” to “how can we solve this?”. And this is how to make good judges out of us all.
There is another imaginary world in this multiverse.
I mean the one where the benefit is that a particular political faction can continue pushing their agenda by creatively interpreting out of the Constitution what they would never be able to get through the legislative process.
And the cost is that any honest professional will steer clear of any important position that said political faction wishes to control, knowing full well that his or her life will be destroyed, due process be damned.
There are many polities like that in the real world, too. Used to be known as “banana republics” in the less enlightened times.