Who to believe: Ford or Kavanaugh?

Yesterday’s riveting testimony pitted Christine Blasey Ford’s “100%” certainty that it was Judge Brett Kavanaugh who sexually assaulted her 36 years ago versus his persistent denials. Who to believe in a hearing where no other testimony got scheduled? Ford said she felt “terrified” and was testifying only because she believed it was her “civic duty” to do so. Given her shaky voice and the frequency with which her raised eyebrows created wrinkles across her forehead, it’s easy to say, yes, she felt fear. Death threats and the memory of Anita Hill’s experience in testifying against Justice Clarence Thomas could be cause enough for ford to have felt fear yesterday. But in the moment, recounting the trauma of the attack was fully cause enough to show fear that came across as genuine and unrehearsed.

It’s harder to give credence to Kavanaugh’s “100” certainty, however. There is no lying muscle or facial expression that reveals dishonesty. Caught in a lie, Richard Nixon showed fear, Dwight Eisenhower sadness, Bernie Madoff contempt, and Lance Armstrong as well as Bill Clinton anger. Indignation is a frequent recourse for a liar, as in: how dare you question my character and veracity! Clarence Thomas raged against a “high-tech lynching” and Democratic senators were cowed. Yesterday, Kavanaugh (and Republican Senator Lindsey Graham) raged and again the Democratic senators on the judiciary committee didn’t meet fury with fury. For Kavanaugh, yesterday’s hearing constituted a “national disgrace” and Ford’s accusations and those of Deborah Ramirez and Julie Swetnick were important only as part of a process that has destroyed “my good name.”

Kavanaugh choked back tears in recalling his daughter’s advice to pray on behalf of professor Ford. Was he momentarily sharing his daughter’s empathetic compassion for Ford? Or focused mostly on his own and his family’s pain because of public embarrassment?  Who knows for sure. But a nose wrinkled in disgust and a mouth taut with fury were far more common displays for Kavanaugh during the hearing than dwelling on an alleged incident that Ford says “drastically altered my life.”

Were the judge’s displays of disgust and anger genuine? Absolutely, but they were also a diversion. The key here emotionally might actually be happiness in Kavanaugh’s case. Ford recalled Kavanaugh and his friend Mark Judge both laughing uproariously as the future judge groped her and stifled her calls for help in a locked room at a suburban high school party. They were “having fun at my expense.” That account squares with Ramirez’s memory of a drunken Kavanaugh waving his penis in front of her face at Yale University as if a funny prank.

Memories are tricky and far from reliable but certain patterns are known. Intense experiences can create hyper attention to crucial details while other details blur. That fits Ford’s specificity in recounting the assault. Other truths regarding how memory work, in contrast, against Kavanaugh. Novelty and meaningfulness are central to what we recall.  Were sexual “pranks” a repeated and therefore not novel experience for Kavanaugh? Quite possibly. Did a drunken, laughing Kavanaugh see the assault as meaningful? Even now, it doesn’t seem so. Add Kavanaugh’s ambition to the mix and his unwillingness to answer specific questions squarely and his angry, disgusted denials look much self-serving than does Ford’s plaintive fear.

How Might Kavanaugh Change the Supreme Court?

Besides death and taxes, the other surety since the Robert Bork nomination fight is that Supreme Court nominees are unlikely to reveal very much in answering U.S. Senators’ questions during the confirmation process. Insisting that they can’t comment on matters they might have to rule on has become the stock reply. So besides their life stories, their allies, and the various prior cases they’ve ruled on, how else can judicial candidates be evaluated for their likely voting records?

One intriguing possibility is to look at judges’ emotional tendencies. After all, a study by Sam Gosling at the University of Texas concluded that liberals tend to be more emotionally positive and extroverted than more negative and detached conservatives. In my facial coding of various high-court justices, past, present, and perhaps future (Brett Kavanaugh), what emerged?

The chart takes into account two measures: appeal (how positive or negative the justices’ emoting is based on taking into account the “flavor” of smiles, scowls and other negative emoting) and the intensity or strength of their emoting. Somebody given to joyful smiles will emerge as more positive and intense than somebody mostly prone to tepid smiles; and somebody whose scowls aren’t softened by instances of mildly amused smiles will emerge as more negative and intense.

071018-02 Supreme Court Cartesian

What do the facial coding results show? In general, Gosling’s theory has merit but isn’t a slam dunk. For the Supreme Court as constituted before Anthony Kennedy’s retirement, The New York Times reported the following share of votes that were liberal:

  • Ruth Ginsburg (84%)
  • Elena Kagan (83%)
  • Stephen Breyer (81%)
  • Sonia Sotomayor (81%)
  • John Roberts (49%)
  • Anthony Kennedy (46%)
  • Neil Gorsuch (44%)
  • Clarence Thomas (22%)
  • Samuel Alito (16%)

Of the four, current Supreme Court justices with a positive appeal result, their liberal voting records mostly match up well: Sotomayor (81%), Kagan (83%), Roberts (49%) and Ginsberg (84%). In other words, three out of four times, Gosling’s theory seems to have some merit—even if Ginsberg is barely upbeat. Meanwhile, the inverse is true for the conservatives: in three of four cases, those justices land in negative appeal territory. Only Breyer (81%) has a liberal voting record to go along with a slightly negative emotional tilt. Add to the track record the conservative-turned-often-moderate Sandra O’Connor (positive emoting) and the rock-ribbed conservative Antonin Scalia (negative emoting) and Gosling’s theory looks to be on even firmer though not rock-solid ground.

So . . . what to expect of Kavanaugh if confirmed? These results suggest that he might prove to be the less reliably conservative vote that some right-wing Republicans fear. Emotionally, he might be a little less conservative than Gorsuch, who is also the most reserved justice based on his low intensity level. If anything, I might predict that a natural affinity may emerge between an affable Roberts and a mild Kavanaugh, with the Chief Justice finding in Kavanaugh a kindred spirit: a relatively speaking middle-of-the-road, circumspect evaluator of cases on a court dominated by conservatives.