Osler's Razor

The testimony before the Senate Judiciary Committee last Thursday has, to say the least, captured the nation's attention in a way a single event rarely does. In part, it is because that one event combined so much that is at the center of our consciousness at this moment: sexual assault, civility, political division, the rule of law, and the role of alcohol in our society.

But there is something else, too, that people are debating: memory.

I got a lot of notes this past week; some encouraging, some nasty. One of the more unpleasant ones was from a bile-spewing woman who told me that I didn't know what I was talking about because I had never been a victim. From there, she explained that she had been a victim (she was robbed and shot in the head), and that from this experience she knows that victims remember everything about what happened to them, and because she does not remember everything Dr. Ford must have been lying.

There is a lot wrong there.

One, and probably the most significant, is the assumption that someone she doesn't know has not been a victim.

Second-- and there is a lot of this going around-- she starts with a single data point (herself) and from that very limited data set draws universal conclusions.

I don't claim expertise in how memory works. But I am wondering how so many others have become so expert in that field that they are able to draw conclusions about two people they saw on TV for a limited amount of time under highly unusual conditions.

There could be larger role for humility in all of this. I am going to try to remember that.

I'll be watching as much of the testimony tomorrow in the Senate Judiciary Committee as I can (and I may be talking about it tomorrow night on CNN). Here is what I will be watching for, and not watching for:

1)  The Democratic and Republican lineups on that committee are distinct in two fascinating ways. Six of the ten Democrats on the committee were previously United States Attorneys or state prosecutors with either trial or supervision experience. On the Republican side, though, only one has that kind of experience--Mike Lee was a federal prosecutor--and a few others have related experiences (John Cornyn was Attorney General of Texas, and Ted Cruz was Solicitor General there--both jobs that rarely if ever take someone into a trial courtroom). Will that matter? Is that disparity one reason that the Republicans have hired a "female assistant" (as Sen. Mitch McConnell called her) to ask the questions? [intriguing, but probably irrelevant, is the fact that half of the Democrats on that committee have Yale degrees, while only one Republican does).

2)  Will the demeanor of the participants affect the way they are viewed? Commentary will probably run heavy on how the two witnesses "looked," and that is in part because there are so few other reference points in a hearing that was not preceded by an investigation and does not include other witnesses.

3)  Will Judge Kavanaugh make enough reasonable concessions (ie "I drank too much in high school and I regret that") to seem credible? It seems that such admissions are outside of the Trump playbook, but probably being urged by his counsel.

4)  I will also be watching Dr. Ford to see if she ties in corroborating evidence to support her points-- for example, that she told others about the alleged events long before Kavanaugh was nominated. If she can do that successfully, it could be convincing to many people.

5)  It would seem that Dr. Ford, who is a psychology professor, would have an advantage in a spectacle that is largely about psychology. She actually has four degrees in psych, from UNC, Pepperdine, USC, and Stanford. Will that be a factor?

6)  Mostly, though, it will be a show trial. If it was meant to reveal truth, there would be an investigation and other witnesses, including Mark Judge.

Sometimes that is an important thing to say. And sometimes you have to say that as publicly as you did the wrong thing in the first place.

Luckily, I got the chance to do that. On Monday night, I went on CNN with Don Lemon and explained that I would not sign a letter in support of Brett Kavanaugh knowing what I know now. You can see that clip here.

Building on that, two of my classmates joined me in my view. There is a great story in the Washington Post today about that, which you can read here.

Sometimes it is dispiriting that so much of what I am involved in is really all tragedy. Criminal law is often like that; clemency work is a partial respite, at least when it works. But if I look tired, there is a reason.

Good haiku! I loved this from Jill:

“You need a sweater.”
My mom’s words ring from beyond
the grave. Still true now. .

Gavin, meanwhile, had the same theme with different clothes:

Shorts? Jeans? Tee? Hoodie?
September keeps you guessing.
Mom says bring a coat!

And Christine looked outside:

Out past grandmas house
Trees, dangling ruby red orbs
Crunch, sweet nectar drips.

Sigh. This just keeps getting worse. And the worst part of it is the failure to recognize the position Dr. Ford has been put in. She has nothing to gain, and she was brave to come forward. Treating her like a villain reveals some of our country's worst instincts.

Why not let there be an FBI investigation?
Why not give her a week to get ready?

What  is the rush? I don't understand that part of this.

If there is one thing I have learned in criminal law, it is that time is a friend to justice. It is rare that rushing a proceeding promotes the ultimate divulgence of truth.

There is something about this month that is just unmistakable.  Maybe because, for me (and other people in or teaching school) it is the start of a new year, all potential and possibility. Let's haiku about that this week-- a September memory you don't mind sharing.

Here, I will go first:

Running at The Hill
Two dual meets every week
Take that, Clintondale!

Now it is your turn! Just use the 5/7/5 syllable formula, and have some fun!

One of the best pieces I have seen on the evolving Kavanaugh appointment story came out yesterday on NBC's website. It was written by five former federal prosecutors, including former E.D. Michigan U.S. Attorney Barbara McQuade. (And yes, it is kind of weird how people I knew at different parts of my life keep popping up in all of this. I keep waiting for IPLawGuy to be involved somehow). The McQuade group's analysis fits with some of my own thoughts, in that it recognizes that when witness stories conflict, corroborating evidence that supports one story or the other becomes very important.

I would note one thing, though: It is often easier to come up with corroborating evidence that an event did happen than to corroborate that an event did not happen, because individual data points can validate individual parts of a narrative. In other words, it is relatively easy to prove part of a story true, while it is hard to prove a negative (that is, that a story is not true) unless a simple proof--for example, an alibi- is available.

I recommend reading the whole piece, but here is part of McQuade and the others had to say:

Culture in Minnesota runs deeper than "Prairie Home Companion," but still... people do identify that old radio show with this place (and are right to do so).

For those of you who weren't keeping track, Minnesota Public Radio fired Prairie Home Companion host Garrison Keiller two years ago in the midst of a scandal involving allegations of "sexually inappropriate" behavior that Keillor denied. The show got a new host, musician Chris Thile, and a new name: "Live from Here."

The transition now seems complete, as the Star-Tribune reports that the last holdovers from the Keillor cast--Richard Dworski, Tim Russell, and Fred Newman-- are leaving the show.

Meanwhile, Keillor is getting the band back together for a performance in November at "Crooners Lounge and Supper Club." Which might be the most Minnesotan thing ever.

Maybe it should have been hurricane haiku? Jill remembered an earlier storm:


2010 Saints healed
NOLA, me, the nation, us
all from Katrina.

Christine's had an update (she lives in NC):

My paddles ready
Kayaking through storm water
New Olympic sport...

ps. not much rain from Florence at our house...

The swimmers ready
Lighthouse on the horizon
And then they are off!

I have often said that I am unashamed and unafraid to be a Christian in public life. That is becoming harder to say.  These have been difficult times. I am ashamed of what many of us have said and done, and frustrated by the inability of myself and others to do much about it.

Last week, I gave a talk to a large conference room full of death penalty defenders about faith and capital punishment. These are the people who follow (whether they are aware of it or not) Jesus's directive to "visit those in prison," and who bear the approbation of many because they seek to avoid the death of a man or woman at the hands of the state.

As is true with people in that business (and in many of my advocacy circles), relatively few of those in the audience were Christians. Many of them, in fact, were alienated from Christianity by what it has come to represent in our society: sexual predation, political ambition, protestations of victimhood by the rich and powerful, and the promotion of "religious freedom" as a permission slip to stigmatize, reject, and harm some of the most hurt and powerless of those among us.

I felt compelled to begin my talk by acknowledging all of this, before identifying myself as a Christian. My first slide showed a cross on a hillside, and I discussed how that image is going to mean very different things to people in this day and time: to some it is a symbol of salvation, and to others a symbol of oppression or dysfunction. Beginning that way that felt right, but also deeply sad. We are in a bad place.

After my talk, several people came up to talk to me. One of them was a Dominican nun who is a death penalty defender. She was one of those people who is tough and warm; a combination too rarely found. Our conversation was brief, but I left it more hopeful.

Christianity, here and in much of the world, can no longer assume respect. We must earn it. That nun is doing so. Many are not. I am not doing enough.

It may be a healthy thing for this faith. We have become fat and lazy and arrogant as a majority; losing that status will make us work to reflect the true example of Christ.

I spent the last few days in Memphis talking to hundreds of people who defend death penalty cases. It was a fascinating time; these people work in a dark and dangerous area, and constantly fight to bring light and balance to a process that resists both. I learned more than I taught, as usual.

In other news, St. Thomas has apparently replaced the "angry hockey coach" photo they have been using with one where I look like a slightly more happy hockey coach.

Americans spend a lot of time watching sports. We do not, however, agree on what sport is the one to watch-- which is why we have something like 73 sports channels on cable tv.  But everyone has a favorite! Let's haiku about that today-- your favorite... or not your favorite-- to watch or play.

Here, I will go first:

It's gotta be baseball
You can do literally
Anything else and watch.

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

As primary season draws to a close, New York Democrats will choose today between two very different candidates, Governor Andrew Cuomo and his upstart opponent, actress Cynthia Nixon. In what might be the most New York thing ever, much of the attention has been drawn to Nixon's bagel order at Zabar's: lox and cream cheese on a Cinnamon/raisin bagel. Apparently, this is viewed as something akin to going to a steak house and asking for a bag of poop. I don't understand the kerfuffle-- I often have a cinnamon raisin bagel with cream cheese (though not the lox).

There are things to like about Nixon, but also she is dogged by some drawbacks:

-- Being named "Nixon"
-- Pretty much her only prior experience is being on TV

Of course, Cuomo has issues of his own. He is (properly) blamed for the subway crisis, and has done little to fix much of the disfunction in Albany. Still, he will probably win... but who knows, this year?

Why is it that I believe that Anonymous's haiku is 100% true?

David Hasselhoff!
I ran over, got a pic
Was not Hasselhoff.

Not long ago, some people put together an internet site dedicated to my old high school. One feature on there was a listing of grads from each class who have died.

Naturally, I scrolled down to the part of the page that described my graduation year and those on either side on mine. And then I caught my breath.

How did all of these people die? With nearly every one, I had a memory, a little bit of shared history. And, with each one, I had no idea what happened after high school. I zoomed off in a different direction, moved far away, and made new friends.

But the tendrils of these other lives went in other directions, some of them tragic. I looked up obituaries; some of them described an illness, while others just laid out that the person had "died suddenly."

Human lives are so precious and so tenuous. I was always struck by the way Jesus seemed to see them all, the tragedies and joys around him. He noticed the lame and sick and poor, even those who just touched his cloak. I fall so short of that: I have a task in front of me and march towards it, undistracted by the lives on either side of me, before and behind me. I am blind. And I shouldn't be.

I am taking some flak for not getting a selfie with Kim K. at the White House on Wednesday. Which is crazy-- that doesn't seem like the place to get a selfie at any rate, especially if you are supposedly there to be an expert in something. Yet, it seems, everyone else got one with her.

The last celebrity selfie I got was with Chewbacca, and I'm pretty proud of that. I'm sure you have at least one or two, right? So let's haiku about that this week. Here, I will go first:

I had to do it.
After all, when would I be
Back on Kashyyyk?

Now it is your turn! Just use the 5/7/5 syllable formula, and have some fun!

Yesterday was interesting.

That's me (well, the back of my head) in the Roosevelt Room of the White House yesterday, sitting next to Van Jones and with Kim Kardashian looking over as I blather on about something. Ivanka Trump is at one end of the table, and Jared Kushner is at the other. Rachel Barkow is hidden behind Mark Holden (General Counsel of Koch Industries) down at the Ivanka end.

In short, Rachel and I, along with Paul Larkin of the Heritage Foundation, were asked to be part of a discussion on clemency reform, and got to make our pitch for a better system. It was a serious and worthwhile discussion, and I was really glad to be a part of it. You can see Gregory Korte's report in USA Today here. If USA Today is too "hard news" for you, here is the E! Online report.

Based on emails I have been getting from far and wide, I know people have a lot of questions, so I have included an F.A.Q. below.

As the confirmation hearings for Supreme Court nominee Brett Kavanaugh began yesterday, the proceedings were repeatedly interrupted by protesters. It was hard to tell, from the radio reports I heard, what they were yelling, but they were effective in distracting the Senators involved in the hearing.

I certainly see that there are differing views on Judge Kavanaugh. But is this kind of protest going to result in any kind of a positive good for the side of the protesters? Or is that not the point?

I am going to have a lot of writing to do about college football. I am struggling with the fact that I can no longer unambiguously support a sport that does damage--great damage, in many cases-- to the players, skews educational priorities, is the locus for scandal on many campuses, and has led the way in creating separate and unequal facilities on many campuses for athletes and non-athletes.

But, still, I can't help caring what happens. And when I saw the end of the Appalachian State/Penn State game on Saturday (Penn State won in overtime) I was swept right back into it.

The whole thing is a fantasy, I realize. Components of the fantasy include delusional beliefs that the players are normal students, that it isn't about money, that the players aren't being used by the system, and that there is no connection between the game and the physical maladies that players suffer decades later. Plus, the fantasy that Michigan will finally live up to its promise.

See, there I go again! My head tells me not to care, but my heart still does. Sigh.

Oh! My dad's haiku reminded me that the Target near their house has closed. That's not a good sign for the East side of Detroit:

We only shopped there 
occasionally .... will miss 
our moving Target.

Meanwhile, do you think the Medievalist needs a call?

My Virgin Mobile
Phone came off the Target shelf,
Great buy to be sure.

And the Silly American had a different favorite:

Seven months, missing
Clothes Encounters Consignment
On Capitol Hill.

While IPLawGuy finally admitted that he takes most of his meals at Target:

Target, Walmart, Sears
as well as Unique Thrift Store
Target has best food.

I didn't know that Isiah Thomas and Aretha Franklin were friends, but of course they were. The two services yesterday-- for Ms. Franklin and for John McCain--have been like reading an obituary where you realize how little you knew about a public person....