Tuesday Talk*: Don’t Kavanaugh Me, Bro

Much as I’m disinclined to frame anything in emotional terms, the fact is that it’s frustrating to see so many curious issues and questions and be unable to engage in a rational discussion about them without some deeply passionate partisan seizing the opportunity to make it all about Kavanaugh.

But it is, you say? Allow me to explain.

One of the most critical skills a lawyer possesses is to distinguish the issue from the case. To the unwashed, every issue that relates to the spectacle that’s absorbed so many of us is about whom you favor. You can’t separate the two. What possible reason is there in considering the question of what “boof” means if not to condemn Kavanaugh for lying about it?

Me: What does “boof” mean? I never heard the word before.

You: It means Kavanaugh is a lying sack of shit who deserves to die in a puddle of his own boof!!! 

Too easy? Try this.

Me: Most of us have things in our high school yearbooks that would be embarrassing to explain three decades later. Do we really want this to become a normal source of inquiry?

You: Most of us don’t incriminate ourselves by drunken rape and then lie about it!!!

That’s fine for you, but does that mean I can’t ask the question without it being about how much you hate Kavanaugh? For example, one exceptionally emotional and controversial issue that came up is whether it’s a good tactic to have a witness weep when giving emotional testimony. Is it true of all witnesses? Is it true for a witness who happens to be a judge seeking elevation to the Supreme Court?

Certainly, these questions relate to Kavanaugh, to what happened at the hearing. But while they’re derived from the hearing, they’re not really about the hearing at all. The hearing may have given rise to the question, but the question exists independently.

Some will respond, Ford’s weepy opening is totally understandable, and anyone who questions the sincerity of her demeanor is literally Hitler. That may be, but that wasn’t the issue. Do we, as lawyers, now advise witnesses to cry, in contrast with all previously understood experience that it usually serves to undermine the witnesses credibility? Weepy witnesses aren’t just a Kavanaugh phenomenon, but happen all the time. Is it not a subject for discussion?

Similarly, I offered a pair of posts about the bizarre circumstances in which Mark Judge and Leland Ingham Keyser found themselves as a consequence of being named by Christine Ford. There were numerous comments left arguing over who was lying and telling the truth, which were summarily trashed because they bore no connection to my posts. It’s not that they weren’t tangentially related, or that the posts weren’t within the Kavanaugh debate, but they weren’t about who was the worst lying liar.

The problem is that these are issues worthy of discussion, at least as far as I’m concerned, but they devolve into the simplistic Kavanaugh circus. Is it too soon? Is it unreasonable to expect anyone to separate the issues from the emotional angst? Are we now doomed to the lowest common denominator of discussion, such that there is no longer a space where detached discussion is permissible?

How can these detached discussions be had when so many otherwise well-intended people can’t let go of their obsession with the larger problem of promoting their tribal view? Or is this no longer possible in the open air of the internet, where the most unduly passionate will invariably seize upon what make them outraged and it’s not permissible to separate the question from the personality, the means from the end?

I get it. You’re obsessed with these hearings, with your outrage over Trump, Kavanaugh and all the women who will either die or have their personal pain denigrated should he be confirmed. But that’s your obsession, not mine. It’s not that I don’t have my own views, but that I have the capacity and desire to put them aside to discuss issues without it being all about who sucks worst.

Are we no longer able to get beyond your feelings to discuss the underlying issues and questions when you’re a slave to your emotions?

*Tuesday Talk rules apply. I fully expect this post to generate some truly idiotic responses. I don’t know why I do this to myself.

86 thoughts on “Tuesday Talk*: Don’t Kavanaugh Me, Bro

  1. BG

    I grew up in that area in those years and “Boof” was a slang term teens used to describe a fart. I was sexually active in those years and that word would NEVER be associated with sex. Just the fact.

      1. BG

        That was THE point, I was very aggravated while witnessing the Dem Sen’s trying to claim that term as a sexual term, I can remember making friends laugh using that silly word. This whole assault on Judge Kavanaugh is an assault on the SCOTUS, they know losing that seat changes the court for decades, it’s “by any means necessary” to avoid that, decency and truth be damned.

  2. BG

    I did not believe Ford, I question her and my Father fought Hitler and my Family was killed by Hitler in Poland.
    Why use that term? Are you that simple?

      1. BG

        Well that makes you as disgusting and simple minded as Donny Deutsche from MSDNC who called all Trump Supporters Hitler. That term seems do easy for you Liberals.

      2. B. McLeod

        The site has “Simple” right in the name. That should be as good as a “trigger warning,” I should think.

    1. B. McLeod

      Later on, Hitler literally killed Hitler. How many people of that generation can say they did that? Yet nobody wants to give Hitler any points for that.

    2. Bill

      I average one comment every 9 months on SJ, but I’m hoping Scott my give me a pass just this once. Are you being serious or are you trolling? The ‘Literally Hitler’ is the type of snark we longtime SHG fanbois come here for.

  3. Eliot J CLingman

    It seems that human nature being what is, most people (including lawyers) lose their ability to think clearly and rationally once deep loyalties are hysterically engaged. America might be particularly susceptible to witchhunts: consider Salem, McCarthy, certain baseball team rivalries, the 90s childcare abuse hysteria.

    That said, its new that most elite universities have changed their Telos from Truth to Social Justice. This perversion of the academy has greatly influenced the younger generations of elites.

  4. B. McLeod

    “Boofing” is commonly used to denote consumption of intoxicating substances by rectal insertion. I think people howling over the hearings may have confused it with “boffing,” which is a completely different activity.

    1. SHG Post author

      There seems to be far more rectal attention these days than there really should be. I’m sure there’s a reason for it, but I prefer not to know.

      1. PseudonymousKid

        Don’t worry, Pa. Everyone knows about that one kid from the next high school over who died boofing because he forgot how the novel intake system would speed alcohol more rapidly to his bloodstream than the more traditional guzzling. The more you know.

      2. B. McLeod

        Skips the digestive system and all filtration. I’ve read cases where people have died from doing this with various kinds of liquor enemas.

      3. CV

        I think the Dem’s naivety on this one is a ruse. I understood it to be how dinner was served at CIA “black” sites?

    2. BG

      Using 2000’s urban dictionary definitions for 1970’s and 1980’s slang is worthless. As I stated earlier, I grew up in Montgomery County near where these people did and “Boofing” was a slang term for farting, no matter what online dictionary you choose. Alas Al Gore had yet to invent the internet when we were boofing back in those days.

      1. Patrick Maupin

        I have no idea what “boof” means, but I find your reiterated insistence, combined with “Judge, have you boofed yet?” and “Bart, have you boofed yet?” written into yearbooks strangely compelling. Holding in farts can be deadly.

      2. B. McLeod

        Whether it was farting or rectally ingesting drugs, it wasn’t “boffing,” right?

        In any event, if the yearbook entries were only questions asking if he had boofed, that does not seem highly relevant.

        1. Patrick Maupin

          It doesn’t appear that anyone is claiming that boofing is the same as boffing, but at the risk of swirling around the edge of the rabbit hole (if I may so mix my metaphors), given the relentless focus on the question of how much beer is too much beer, it’s certainly conceivable that a reluctance to answer questions about the ramifications of a 30 year old discussion about anal ingestion of alcohol could lead a crybaby to attempt on-the-fly redefinition of the meaning of the word.

  5. Lucas

    In the book “The Elephant in the Brain”, Kevin Simler and Robin Hanson make the argument that groups that we belong to are judging us all the time, and we have to send signals to justify our membership.

    The “open internet” makes it too easy for a member of a group to send a signal to the other members. Signals are very visible and perhaps stay permanently “on the record”, which makes such signals more valuable for both the sender and the receiver: the sender is committing, and the receiving group can see the commitment.

    The Kavanaugh saga became a beacon for signaling group membership: among other features, it has a lot of attention. Given that some large groups require being dogmatically either pro or against Kavanaugh as a condition of membership, I think it’s going to be hard to have a productive discussion on the open internet about any question related to Kavanaugh, at least for a while.

    Maybe it’s just an impression as I’m getting older, but it seems that mainstream groups (such as “Democrat” or “Republican”) are now demanding a copious amount of blind faith. Since these are large groups, it’s going to be hard to have _any_ productive discussion on the open internet unless it’s very hard for participants to signal group membership.

  6. BG

    I’ll stick with, “Innocent until proven guilty” and “Thou shalt not bear false witness”.

    Everything else is worthless opinion based on your TV channel of choice.

    1. SHG Post author

      Not even someone as brilliant as you gets to start new threads every time some new stroke of brilliance pops into your head. Use the reply button from now on. Non-negotiable.

  7. Richard Kopf


    You ask: “Are we no longer able to get beyond your feelings to discuss the underlying issues and questions when you’re a slave to your emotions?” I fear the answer is “no.”

    The underlying question becomes “Why?” Insofar as the federal judiciary in particular is concerned, I have a tentative theory.

    The federal courts, and particularly the Supreme Court, have become far too powerful. This has resulted through the failure of the political branches of government to do their work. Power detests a vacuum, and that power of government has been transmitted to the federal courts because that is the only avenue open for getting things done.

    Since federal judges aren’t elected, confirmation hearings become referendums for our fears and hopes cast against a backdrop of a world that is becoming more complex than a Rubik’s cube squared. Thus, confirmation hearings become a proxy war between good and evil.

    Is there a solution? I don’t think so.

    Shortly after the American revolution, the tribalism of the Federalists and Jeffersonians came close to destroying our nascent nation. But for Alexander Hamilton, we would have had no America today. The One has come and gone, Mr. Burr killed Mr. Hamilton and there is no Humpty to put us back together again.

    In short, I have very little hope that rationality, in the sense and in the arena to which you refer, will prevail. We are too far gone.

    All the best.


    1. SHG Post author

      Is it “too powerful,” or the last putatively functional branch of government, which became the only alternative when the legislative branch became paralyzed such that lawfare became the last course of action to accomplish policy change? Had the courts refused to let them become a substitute legislature, perhaps the efforts would have been directed toward making the legislative branch functional. But when courts allowed themselves to be party to this shift, thus enabling and encouraging ever-increasing lawfare, they acquiesced, if not asked, to be treated as just another political entity in whatever war was being fought at the moment?

      1. phv3773

        Maybe the impotence of the legislative branch is due to the country being split too close to 50:50, and when the demographics change, and one side has a decisive advantage, things will better.

        1. SHG Post author

          Congress has been paralyzed (with exceptions) for the better part of 30 years. We’ve had presidents from Dems and Reps over that course of time, shifts in majority, but what we’ve lost is the ability to reach consensus without it being political suicide for politicians. We may be split too close as a nation, but local politics by state and congressional district has become very one-sided.

          1. Jeff Gamso

            Blame it, in part, on the advance of electoral democracy, otherwise known as primaries. They bring out the party bases; everyone else stays home. Which means candidates who actually want to be elected (or re-elected) are subjected to the NO COMPROMISE Rule.

            It’s not that the smoke-filled rooms consistently produced better candidates or spectacularly functional and decent government devoid of demagogues (e.g., McCarthy & Co.), but they did cut down on some of the hysteria from all sides.

            Madison rightly feared too much democracy.

            1. Richard Kopf


              I wish to pick a nit. “Madison rightly feared too much democracy” until he didn’t.

              In the end, Madison took the lead in building the Republican Party in opposition to Alexander Hamilton and the Federalists. The Federalists rightly called Madison “the General” and Jefferson “the Generalissimo” of the Republican Party. Madison turned against Hamilton, his co-author of The Federalist Papers, because of his loyalty to Virginia. His coconspirator was Jefferson. Jefferson and Madison’s loyalty to Virginia (and slavery) trumped their loyalty to the United States.

              Your premise is correct–too much democracy! As I see it, the true supporter of that premise is Hamiliton and not Madison. Hamilton was consistent, and Madison was not.

              All the best.


      2. Richard Kopf



        All the best.


        PS I wonder whether anyone will catch the irony in my prior comment regarding my brief recounting of history?

        1. SHG Post author

          With all due respect, Judge, when you say it, it’s not irony but wrinkly.

          I’m sorry. I couldn’t stop myself.

    2. Lex

      Federal Appellate Judges: The most powerful people in the world who need the vote of one other person to take a pee break.

    3. School Lawyer

      Judge, our host has nailed a far broader problem than Court nominations.

      “Distinguishing the issue from the case” is so lost an art that many lawyers can’t do it either. See any Title IX discussion about how due process let’s too many men escape — lawyers everywhere on the wrong side. I can’t believe they passed the bar. Or see any campus speech code. Or see the Kentucky state government, whose lawyers tried banning a citizen from the state house after nearby workers took umbrage at a story he told in the hall.

      The only answer in sight is for the rest of us to keep pounding the table for step-by-step thinking. Scott, keep up the great work. My family and friends hear all about your views, all the time.

      1. Richard Kopf

        School Lawyer,

        You are right, Scott’s post presents a much broader problem than addressed in my comment. To the extent I took Scott’s post off the rails I apologize.

        Related to your comment, and for what it is worth, during oral argument, I like to put hypothetical questions to the lawyers to help me think through the issues. The inept lawyers will say “but that’s not my case.” The good ones will engage with the hypothetical. The great ones (like the Admiral) will turn the hypothetical to their advantage.

        All the best.


    4. David Meyer-Lindenberg


      I agree, with one reservation: I think you understate the importance of the executive branch and how well the various agencies that make it up have done at usurping power from the lege. But fortunately, everyone running one of those things is sagacious af and, of course, elected.

      All the best,

      1. SHG Post author

        Be careful about how you see the regulatory power, as a usurpation or an unwarranted gift. For the most part, Congress avoided the hard work of legislating by passing laws that left the heavy lifting to agencies, so that they could get past all that hard work and nasty bickering that sound laws require. Sure, there were agencies that took advantage, went hog wild, but then, Congress could also have dealt with that and shut them down. They didn.t You can well blame agencies for exceeding their mandate, or doing it improperly by ignoring the APA, but you can’t ignore Congress’ handing them the power or being too paralyzed to deal with it.

  8. John Barleycorn

    You know it would really be helpful if you let us know what you did with that newspaper you read everyday after you are finished with the opinion page and ponder what it would take to fall victim to the tight suit advertisements conspiracy.

    Do you bundle them? Cotton, hemp, or nylon…

    And if so where do you store them, next to that dusty car or that excuse for a tractor?


    Worse is relative, especially when there is such a long ways to go. You might want to reconsider your strategy, sell me the URL, or partner up with some optimists from Texas and Nebraska or something.

    P.S. I didn’t see Brett at this show, did you? I am pretty sure I saw another guy who ended up being a judge though.

      1. John Barleycorn

        Speaking of which isn’t it about time Wheeze recycled the Buckskin garment.

        Fall is here and something tells me a decent portion of your “new” readership might be ready to show of their tight suits for such “fringe”.

        Either that or you sell me one of your watches and let me auction it off here so I can retrieve my passport. I’ll give you 10% and set you up with Barbra for lunch as long as you don’t tell Kavanaugh’s wife. Should be good for your taxes considering recent congressional actions.

          1. John Barleycorn

            Linking these memories is worse than contemplating future judicial appointments.

            Have you no decency?

            Just sell me the watch and I might throw in a recently acquired album if Barbra is cool with it and Wheeze didn’t have his tailor cut the coat.

  9. Jake

    Sorry, I can’t let this pass:

    “Most of us have things in our high school yearbooks that would be embarrassing to explain three decades later.” -This is not true.

    “Do we really want this to become a normal source of inquiry?” – For Supreme robe wearers? Yes.

    1. SHG Post author

      It’s funny (though not surprising) you would raise that. I tested the theory on twitter, and it ran very heavily against you. That said, the tiny fringe minority who agreed with you similarly agreed that they were the best people ever and everyone else sucked, so at least you can take comfort in your wonderfulness.

      1. Pete

        My Yearbook doesn’t bother me. However, replace my highschool yearbook with my highschool Facebook and you have a very SCARED BOYE.

        1. SHG Post author

          My yearbook is kind of embarrassing too. Not that bad, but not quite what I want to explain about my high school self on TV. It’s good to be you.

          1. Jake

            “It’s good to be you.”

            I’ve been in bar fights. I’ve been in handcuffs. I’ve been held at gunpoint. And the things in my background check would disqualify me for service in the United States Coast Guard. Yet the only things embarrassing about my HS yearbook entry are how tame it is, and that I never even graduated from high school.

            I will say this though: Bart O’Kavanaugh and I would have gotten along very well in High School. But I still don’t want him wearing the Supreme Robe.

          2. LocoYokel

            My yearbooks are not, but only because I didn’t do anything in high-school. For a variety of reasons, not least of which I hated the school and everybody in it so didn’t get involved in anything not required.

  10. D-Poll

    The part of this I’m most interested in hearing — that’s the point of a Tuesday Talk, right, talking about me? Right, thanks ­— is the bit where supposedly modern, supposedly sex-positive supposed-feminism decided that it needs to become an item of national news that this “Renate” chick was apparently the school bicycle, as they used to say, back in the day. One would think that someone in the (D) chairs, or at least their third-string backup in the media, might have questioned the need to press Kavanaugh on the subject when it gains nothing but making a particular woman’s youthful sex life a political interest topic. Yet all I hear is “omg he said ‘good friend’ but u KNOW they were DOING IT!” Funny how that works.

      1. John Barleycorn

        You rhetorical noise has starting to slip just a little bit.

        If you weren’t aware and all….

        P.S. I always forget the name of that fraternity who made sure theses guys shows sold out for a brief time, back in the early 80’s?

    1. Loco

      Darn, the embed didn’t work. It must be something in the wordpress code because it worked when I tested it.

  11. Hunting Guy

    Amanda Green.

    “I don’t know about the rest of you, but a very large part of me wishes I’d been hiding under a rock, deep in the back of a cave.”

    I suspect that a lot of people feel that way.

  12. Nemo

    I have been thinking about this hard, but I’m going to once again abuse the TT rules, in two particulars. The reason I am doing so is in response to the general tone of gloom here. I will go orthagonal, diagonal, and possibly octagonal, and I shall employ a personal anecdote. It’s personal, but it’s not really about me.

    Y’all talk gloomy, but I am confident that our Republic will endure. Why? Our kids. It’s easy to focus on their weirdness, and write them off, but hear me out, please.

    You see, I have had another crisis, and I have very little hope for my future. Yesterday, I went to a friends, so he could help support me – but he got called away by an emergency. So I found myself on his porch, alone with my thoughts, not a good thing.

    Well, first one of his kids wandered out, and then the other one pulled up and parked. They asked what was wrong, so I tried to give them a short digest. When I realized I was going long, I tried to shut up. Those kids wouldn’t let me. They don’t understand my problems, but I guess they knew that as long as they kept me talking, they could support and comfort this battered old man.

    They aren’t my friends, they aren’t my kin, and they owed me nothing. They belong to the iZombi generation. While they stayed with me, I never saw their phones. Say what you will about that, they have it where it counts.

    And they aren’t an exception. I have gotten to know a bit about quite a few of my kids’ friends, over the years, and underneath it all, they’re mostly good folks. Even some of the bad ones grew up, and got things straight. Others could still do the same thing.

    The future of our nation isn’t secure, by any stretch. We face challenges, but then, we always have. But I believe we have a future, because I believe in our kids. When challenges arise, they step up, too. Pull your eyes away from the media spotlight, and it’s easy to see it. This nation isn’t finished unless we give up before the kids can step up – but they will, if we give them half a chance.

    With my apologies,


    1. Billy Bob

      Nice anecdote, Nemo. A different take on things for real. We second the motion. Maybe the Greatest Generation and their children were not so great after all? We were certainly no strangers to greed, and not adverse to “bending the rules” whenever the opportunity presented itself.

      Fast Forward: The Times–all the fake news that’s unfit to print–reports this morning on the Trump family shenanigans. Can you say Massive Financial Fraud on the govt.? Check it out. Our President!

    2. SHG Post author

      Support and empathy are wonderful things, but eventually somebody has to do a little bit more to make the machine of govt work. It doesn’t run on tummy robs, no matter how nice they feel.

      1. Nemo

        Having never experie3nced a tummy rob, I’ll take you word for it.

        More seriously, the elder generations have been saying such things about the younger generations for millennia. The upcoming generation is never believed to be up to the tasks and challenges ahead. We never believe in them. Well, I do.

        Why is this important? Well, since you chose to discuss tummy rubs when I was talking about character, the character at the core of our young folks, I’ll take that as an invitation to also reply indirectly. It’s important because if we can’t trust our kids to clean up our messes, then every challenge we face becomes a crisis.

        Ever worked somewhere that operated by “crisis management”? It looks a lot like our current sociopolitical tangle. In a crisis management office or shop, thinking well becomes very difficult, because there’s always a crisis. Look around, and the comparables are obvious.

        Trying to make people believe that we are having a crisis is making them dumber. Telling them to take a breath, it isn’t an emergency, and we have good backups behind us makes them smarter, because it lets them calm down enough to think.

        tl;dr: Making people panic makes them dumber, calming their panic makes them smarter, zero education required. Make people smarter, not dumber.



        1. SHG Post author

          Lawyers are constantly engaged in crisis management. Some people panic under pressure. Others rise to the challenge.

  13. Dave

    I opposed kavanaugh from the start because he is a partisan hack. When I told this to my GOP lifer friend, he said that 95 percent of federal judges are partisan hacks as they are political appointments. My response was…even if that is true, we still should only accept on the supreme Court those judges in the 5 percent. When they had the fillibuster that could reduce the hackery. The GOP got rid of that for SCOTUS.

    1. SHG Post author

      Well, now that you say Kav is a partisan hack, that changes everything for everyone. Why didn’t you speak up sooner and save us from this fiasco?

  14. B. McLeod

    Because this really calls for a link, I am posting it here rather than the Kavanaugh Hill thread. Apparently, several groups of protesters descended on ABA headquarters in Chicago today, to call for ABA to “disbar” Kavanaugh, so utterly butt-ignorant of basic civics they really believed ABA had the power to do this.


    Apparently, this is what “Socialist” organizations have now come to in this country (my fist-and-flower lapel button is officially going in the trash this evening).

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