Misrule of Law

I am a big fan of City Journal. I subscribe to it, enjoy reading it, and occasionally write for it. I was disappointed, therefore, to pick up the Winter 2019 issue when it arrived in the mail recently to see six pages wasted on a pompous essay by Anthony Daniels (writing as “Theodore Dalrymple”), a retired British prison psychiatrist. The essay, on last year’s Kavanaugh confirmation hearings, was titled “A Gladiatorial Soap Opera.” Here is a link.

Daniels acknowledges that his medical training and professional experience interviewing prisoners makes him no better at judging credibility than the untrained layman:  “[A]fter a lifetime of interviewing victims, perpetrators, plaintiffs, defendants, witnesses, lawyers, and others, I regret to report that my first impressions are as frequently mistaken as anyone else’s, and almost as often as when I started out in life.”

So why are his impressions of any value?

For inexplicable reasons, he is sympathetic to Christine Blasey Ford: “My impression of Blasey Ford was that she was not simply and straightforwardly a liar.” Many Americans disagree with this assessment.

For equally inexplicable reasons, Daniels dislikes Brett Kavanaugh:

I did not find Brett Kavanaugh to be quite as impressive as many did who sided with him, and who (it seemed) were determined to find him impressive, come what might. My first objection to his performance was almost an aesthetic one. I thought his reference to his ten-year-old daughter who supposedly prayed for Blasey Ford was, at best, in bad taste, being a kind of religious kitsch—actually religiose rather than religious; and, at worst, emotionally exploitative of a child, like having a child at a political rally with a banner calling for something or other that the child cannot possibly understand. Children should not be instrumentalized in this way.

Kavanaugh’s anger, however justified on the assumption of his innocence, was unjudicial. After his outburst against them, could he expect Democrats (who, after all, were more numerous than Republicans in the last election) to have faith in his future impartiality toward them? In fact, I believe a man of his standing and ability is fully capable of recovering his equilibrium, but I would not be surprised if others did not share my faith.

Of course, he was in an extremely difficult position, and if he had reacted coolly, he might have been accused of arrogance, disdain, condescension, or intellectual hauteur. But if he had been calm and collected, rather than angry and rancorous, is it likely that those who ultimately voted to confirm him would not have done so? Besides, a judge ought to act judicially, however it plays with an audience, and if he loses his advancement or preferment in doing so, so be it.

“Come what might? “Preferment”? Who talks this way, other than a Brit wishing to affect a haughty tone?

The entire essay struck me as pointless and unconvincing. So I wrote a letter to the editor, which is unlikely to be printed. So I am reproducing it here:

Dear Editor:

I’m not sure I get the point of Anthony Daniels’ pseudonymous essay on the Kavanaugh confirmation hearings. Armchair psychiatry went out of fashion—for good reason—following the LBJ-Goldwater campaign in 1964. The retired prison doctor admits that his “first impressions are as frequently mistaken as anyone else’s,” yet he presumes to plumb the credibility of Christine Blasey Ford and Brett Kavanaugh with a trained medical eye. As they say across the pond, rubbish. City Journal’s readers don’t need an “expert” to guide them through this sordid spectacle. Most observers of my acquaintance believed Ford’s vague and contradictory story was a pack of lies. Kavanaugh, in my estimation, delivered one of the finest forensic performances ever by a lawyer in an adversarial proceeding. Of course, subjective impressions can differ (which brings me back to my first point), but I call bollocks on the notion that Kavanaugh’s mention of his daughter praying for Ford—an obviously disturbed woman—was “a kind of religious kitsch,” or, even more absurdly, “emotionally exploitative of a child.” The author’s medical credentials do not support such condescension. As an acknowledged “outsider,” Daniels may have a good sense of British social customs, but here in America, when an accomplished and honorable man is accused without basis of being a serial rapist and drunken psychopath, he responds with righteous indignation. To me (a litigator for 30 years) Kavanaugh’s demeanor was pitch perfect, not “unjudicial” or “rancorous.” Daniels dresses his people-watching in pseudo-scientific therapeutic jargon, but he is no better equipped than any other observer to make credibility determinations. His essay struck me as an exercise in “intellectual hauteur” (to use one of his clinical terms).

Sincerely,

Mark Pulliam