An Ever More Polarized Nation

The Senate Judiciary Committee hearing riveted the nation last week. Over 20 million people watched it on television, and more than 30 million people viewed it online. What makes those numbers even more remarkable is the fact that the Judiciary Committee held the hearing on a weekday when most Americans were at work. Yet 50 million people still found time to follow it. By way of comparison, NBC’s Sunday Night Football—which year in and year out is the most watched weekly television program—averages 18.5 million viewers. When a midweek Senate hearing attracts more viewers than the NFL, you know you are witnessing history unfold before your eyes.

Although the Kavanaugh hearing brought tens of millions of Americans together in front of their televisions and computer screens, the extraordinary shared experience did not unify the country. Quite the reverse. According to a YouGov poll over the weekend, 41% of Americans believe Dr. Christine Blasey Ford’s allegation that Brett Kavanaugh sexually assaulted her 36 years ago during a high school get-together. The same poll found that 35% believe Judge Kavanaugh’s categorical denials of the sexual misconduct allegations that Dr. Ford and two other women have brought against him. A Reuters/Ipsos poll on Sunday found similar results, with 42% of respondents believing Dr. Ford and 32% believing Judge Kavanaugh.  

Partisan affiliation, not gender, is the key factor in the divergent views of the nomination battle. In the YouGov poll, Republicans believe Kavanaugh by a margin of 74% to 14% whereas Democrats believe Ford by a margin of 73% to 11%. In the Reuters/Ipsos poll, two-thirds of Democrats believe Ford and about two-thirds of Republicans believe Kavanaugh.  

The hyperpartisan response to Ford’s allegation reflects the historic level of political and ideological polarization in the country. A 2016 study found that Americans are more polarized than anytime since the Civil War and Reconstruction Era. The intense public disagreement over the Ford-Kavanaugh controversy will inevitably deepen the national divide.

Of all the commentary I read over the weekend, one of the most interesting was a story in the Washington Post titled “For two Nebraska women, the Kavanaugh hearings test their view of their country, of Trump and each other.” The article looked at the Kavanaugh controversy from the divergent perspectives of two neighbors in a small Nebraska town. It is well worth your time. As one of the neighbors said after watching the Kavanaugh hearing, “I’m sitting there cheering like I’m watching a football game. I have my team. Laynette [the other neighbor] has her team. It’s not a good thing.”

Reading the Post article reinforces the conclusion that even when Republicans and Democrats reside on the same street, they still live on different planets. For example, an August 2018 Pew Research Center Poll found that 78% of Americans believe Republicans and Democrats cannot even agree on basic facts. The Kavanaugh hearing demonstrates that point in spades. 

Ironically, one of the few things Americans universally agree on is the importance of the Supreme Court. Last week a Pew Research Center poll found that the Supreme Court is the preeminent issue on voters’ minds—surpassing health care and the economy—as the November 6 midterm elections approach. Amid many mixed signals, there is some indication the Kavanaugh controversy could benefit Republicans by driving up conservative turnout, especially in the Senate races in red states. Democratic enthusiasm was already at sky high levels even before the Kavanaugh nomination fight, which means the polarizing controversy may have less of a net effect on Democratic turnout.

In any case, as of tonight, FiveThirtyEight gives Democrats an 81% chance of winning the House but only a 32% chance of winning the Senate. Although the House races have largely dominated media coverage of the 2018 election, the Senate races are vastly more important for the future of the Supreme Court. If Republicans retain control of the Senate, they will be in a position to fill any opening that develops on the high court over the next two years. Conversely, if Democrats take control of the Senate, they will be in a position to block all federal judicial nominations until January 2021.

The wildcard, of course, is the FBI investigation. If the FBI turns up evidence corroborating Dr. Ford’s accusation, it will sink Kavanaugh’s nomination. The judge categorically denied, under oath, Ford’s allegation against him, as well as those of the other women accusing him of sexual misconduct. If his denials are proven false, it is hard to imagine any scenario in which he ends up on the Court.

But if the FBI turns up nothing new, Kavanaugh seems certain to be confirmed. The absence of additional corroborating evidence in support of Dr. Ford would give political cover to the three wavering Republican senators—Jeff Flake, Susan Collins, and Lisa Murkowski—thus making a vote to confirm Kavanaugh much easier for them. In the no-further-corroborating-evidence scenario, the pressure would ratchet up dramatically on vulnerable Democratic senators facing reelection bids in red states, especially North Dakota’s Heidi Heitkamp. The most recent polling data shows Heitkamp trailing her Republican challenger by 4 points. Heitkamp voted for Neil Gorsuch in 2017 and she knows a vote against Kavanaugh could seal her fate in conservative North Dakota. If Heitkamp loses, the Democrats do not have many viable paths to winning a Senate majority on November 6.

The stakes could hardly be higher for the Supreme Court, the Senate, and the country. Whatever the outcome of the FBI investigation and the Kavanaugh confirmation vote, the one thing we can say with confidence is that, in the end, half the country will be thrilled and half the country will be appalled. We just do not know yet which half will be thrilled and which half will be appalled.      

Comments

[Scott Fruehwald]

The problem is that cognitive biases are reinforcing both sides' views. Essay: Cognitive Biases and the Political Divide at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3194225 .

[Anthony Gaughan]

I think you are absolutely right, Scott. And, as you write in your essay, cognitive biases are "not related to intelligence. Very intelligent people suffer from brain biases." That's a really important point that too often gets overlooked. Thanks for your comment.

[Paul Horwitz]

It is surprising that the proposition that very intelligent people suffer from cognitive biases would be overlooked. Even leaving aside sarcasm or contempt, it is certainly not ignored by those who do not portray themselves as part of the cognitive elite. It should certainly be known to those who would so identify as well, or who qualify by some kind of objective criteria. (Indeed, I would say that any member of the "cognitive elite" who is unaware that he or she is likely to be subject to cognitive biases, motivated reasoning, and so on or thinks there is some reason why he or she would be exempt has a highly dubious claim to being a member of any kind of cognitive elite status. Such a person might be educated, but I find it harder to call him or her intelligent.) And it was well known long before the language of cognitive bias, motivated reasoning, etc. were in common usage: What is Halberstam's best-selling classic The Best and the Brightest if not a whole book on this subject? That said, I agree that based on the little environments in which I most often see this group at work and play, they themselves regularly seem to overlook the possibility that their reasoning suffers from cognitive defects or distorting motivations.

I might say that, at least for lawyers and law professors and no doubt for many others, the qualities on which they often pride themselves are especially dangerous to them and make it especially possible for them to overlook the motivated nature of their own reasoning and the effects of cognitive biases. Those qualities include high forensic skills, high "reasoning" skills where that reasoning involves making clever arguments from limited factual information and isolated and heavily determinative premises, undue confidence in the usfeulness of "logic" where it proceeds from such limited facts or limited and dubious premises, and a combination of overconfidence in their own conclusions with the inability to fully appreciate the potential validity of alternative arguments or possibilities. (This often appears as an easy assumption that X is the only "logical" conclusion, an assumption whose weakness is often transparent to everyone except those who are already locked into a set of premises or assumptions.) Faith that a few facts, combined with various forensically or logically skillful tools applied to those few facts, can lead to an ineluctably correct answer is common in our field, although I should think these people would be better off searching for more facts, and attempting constantly to re-evaluate those facts and be equally aware of the possibility of other facts they are unaware of or have ignored, than attempting to "reason" their way to the truth from a weak or factually limited foundation.

The paragraph above suggests not just that people in this category may wield tools that are highly susceptible to weakness and to the influence of cognitive defects, but that they are also likely to be overconfident about the usefulness of those tools (for which they have been rewarded professionally for years, often without any available evidence to confirm or disconfirm the correctness of their arguments: winning a case or writing a widely noticed law review is not the same thing as getting to the truth) and about their own skill at using them. On this, see Philip Tetlock's Expert Political Judgment, in which experts' predictive skills are shown often to be wrong but they show great skill at mustering and deploying arguments rationalizing those mistakes.

[Anthony Gaughan]

Thank you for your great comments, Paul.

I have always loved David Halberstam's book, "The Best and the Brightest." It is an absolute classic, but I don't think it is as widely known as it once was. I just looked it up on Amazon and it is ranked #42,889 in sales, which to be sure is pretty good for an almost 50-year-old book. However, I don't think "The Best and the Brightest" is well-known outside history circles. A lot of history profs assign Halberstam's book in courses on the Vietnam War (which may explain its Amazon ranking) but it otherwise has a very low profile today.

That is a shame because "The Best and the Brightest" does indeed have great relevance to legal education, along precisely the lines you indicate. One of my favorite parts of the book is Halberstam's portrait of McGeorge Bundy, which includes Halberstam's telling observation that "McGeorge Bundy was a rationalist in an era which saw the limits of rationalism and which rekindled the need for political humanism." Halberstam's analysis of the decision-making process that got us into the Vietnam disaster illustrates why intellectual humility, caution, and self-awareness are essential components of true intelligence and wisdom.

It's particularly disconcerting to reflect on the fact that (according to polling data) we are more polarized today--and thus even more vulnerable to cognitive biases--than we were in 1964-65 when the US got itself into the Vietnam debacle. Indeed, in so many ways, the Iraq War (a conflict I served in) was a replay of the Vietnam War, albeit on a smaller scale. I am amazed by the extent to which Donald Rumsfeld was a dead ringer for Robert McNamara and Paul Wolfowitz was for McGeorge Bundy. But I should also add that I supported the Iraq War when it began in 2003, so I personally have no room to judge others. Despite having studied the Vietnam War, I still made the same cognitive mistakes everybody else did who supported the Iraq invasion.

Anyhow, thanks again so much for your comments.

[anon]

Of course! Who cares about the merits? When we have tv ratings and polls (as if these have ANYTHING to do with the issues) and such to discuss, the merits of the nomination should matter not at all.

Thank goodness for thought leaders to guide the discussion to what is truly relevant: strengthening the polarization by ignoring the reasons it exists.

What should be the standard by which we judge decades old allegations of high school misconduct, following by decades of blemish free service? How should we judge this circumstance, if that is what the facts tend to show?

If culpable for allegations of drunkenness and belligerence when drunk in high school, but not sexual assault or anything close to that, should a candidate for SCOTUS be disqualified?

If Dr. Ford's memory of the attendees at the gathering in question is not corroborated by even one of those other alleged attendees, what weight should be given to those conflicts?

[Demonstrating his obvious prejudice and bias, the author states above: "The absence of additional corroborating evidence in support of Dr. Ford would give political cover to the three wavering Republican senators ..." instead of "The absence of any independent corroborating evidence in support of Dr. Ford's claims would cast doubt on the accuracy of her memory concerning the alleged incident."]

On a website read by and directed primarily to law professors, the issue that was not even mentioned in the post above -- the issue that clearly doesn't matter here -- is the ability of the person nominated to be a fair and competent member of the SCOTUS.

If your answer is that a sexual predator cannot so serve, then, IMHO, one might find that you don't understand the foundations of the legal system in the US, the rules of evidence, and the value of honest deliberation, objectivity and fairness.

If law professors argue that an accusation without more is proof enough, based on the gender of the accuser and the nature of the charge, then our legal system truly is in jeopardy, and, of equally great concern: what are these professors teaching their students?

[Brett Kavanaugh Macho Macho Man Association of America]

^^^^In my practice Jurisdiction, the OUTCRY to a therapist in 2006 is the corroboration for evidentiary purposes to establish a sexual abuse of a child beyond a reasonable doubt. The proof is the Outcry to an independent witness. Very similar to a VSI. Lets also consider the circumstantial evidence. It is circumstantial, but it is evidence. Most crimes are established that way. Nobody is going to produce a video of this sexual abuse.