MONDAY, APRIL 4, 2022
The question was quite straightforward: A headline in Sunday's New York Times took us where the rubber meets the road.
The headline appeared in the Book Review section. The headline in question said this:
Can We Empathize With Our Enemies? One Author Wants Us to Try.
In our view, the best way to achieve that empathy would be to drop the concept of "enemies." For the record, this is the book in question:
I NEVER THOUGHT OF IT THAT WAY
How to Have Fearlessly Curious Conversations in Dangerously Divided Times
By Mónica Guzmán
For better or worse, our contemporary political discourse, to the extent that anything like a discourse exists, is built around a potent "enemies" construct.
In the past two weeks, we've watched as our own blue tribe reacted to Judge Jackson's confirmation hearings. As we did, we were stuck by the way we built our standard "frightened child" fairy tale about the ways our tribe's enemies had behaved.
In this standard fairy tale construct, a band of angels—Us—confronts a band of demons—Them. We confront them through our recitation of standard group talking points.
Within our tribe, we all knew the talking points with respect to Judge Jackson, who has of course had a highly impressive legal / judicial career.
We knew that we were supposed to say that she was the most qualified nominee ever. We were supposed to position her nomination as an hidtorical breakthrough.
We were encouraged to say that her confirmation would make the Court "look more like America," a bit of a statistical absurdity. Above all else, we were supposed to say that the behavior of The Others was racist, and that, in their opposition to Jackson's nomination, they were appealing to the QAnon crowd.
We were supposed to say that their conduct was The Worst Ever, but also The Worst Yet.
Here at this site, we watched large chunks of the confirmation hearings. Those frameworks didn't strike us as helpful, or as being especially accurate.
As we noted last Friday, we loved what Judge Jackson said about the way the nation's children should be treated in school. She won our allegiance right there, with that brief statement.
On balance, though, it didn't seem to us, in any obvious way, that she was the greatest nominee ever. In fairness, we can't imagine a reason why she should have to reach such heights. On balance, though, we were a bit disappointed by the flaws in her performance.
Given the way our discourse now works, no one was going to give voice to any such point of view. Within the realm of our own frightened tribe, the conduct of The Others had to be "shocking"—and Jushe Jackson had to be the greatest nominee yet.
Like you, we have no way of knowing where Judge Jackson stands compared to past nominees, almost all of whom were in fact highly accomplished. Today, we'll close our discussion with the part of her performance we were must disappointed by:
We refer to her refusal to answer the senator's question.
We refer to Senator Hawley (R-Mo.), who is very poorly regarded within our liberal tribe. Was he sincere in asking his question—in pushing a certain line of inquiry?
We have no way of knowing such a thing. We do know that Judge Jackson kept refusing to answer his question.
Hawley's question was quite straightforward; it should have been easy to answer. It concerned one in roughly a half dozen cases in which Judge Jackson had given relatively lenient sentences to child pornography offenders.
Among those cases, the one which stood out most involved an 18-year offender named Wesley Hawkins. By the time he was sentenced by Judge Jackson, Hawkins was 19 years old.
Prosecutors had asked for two years in prison. The probation department had recommended a sentence of 18 months.
Judge Jackson had sentenced him to three months in prison. Why had she issued that sentence?
On its face, the question shouldn't be hard to answer. Hawley began his discussion as shown:
HAWLEY (3/22/22): I listed the seven cases in which you had discretion and you did not follow the prosecutor's recommendation or the sentencing guidelines. But let's just talk about one of them because we've talked about some of them as a group.
Let's talk about United States versus Hawkins. I think that's when you probably remember from 2013, the defendant there was Wesley Hawkins. He was 18 years old at the time, he uploaded five video files of child pornography from his computer to YouTube. This is how the police got onto him. He then uploaded another 36 depictions of child porn and other lewd photos of children to his iCloud account.
When the police executed a search on his apartment on the premises, they found 17 videos on his laptop and 16 images of child pornography. All of them very graphic. Some of them involving very young children.
That's the way the discussion began. A long discussion by Hawley ensued, during which Hawley quoted various parts of Judge Jackson's statement at the time of sentencing.
Hawley noted that the prosecutors had asked for a two-year prison sentence, but Jackson had sentenced Hawkins to three months. When the enemy asked his question for the first time, here's what the enemy said:
HAWLEY: I just want to ask you about that because I just have to tell you I'm having a hard time wrapping my head around it. We're talking about eight-year-olds, and nine-year-olds and 11-year-olds and 12-year-olds. He's got images of these, the government said added up to over 600 images, gobs of video footage of these children, that you say this does not signal a heinous or egregious child pornography offense.
Help me understand that. What word would you use if it's not heinous or egregious? How would you describe it?
"Help me understand that," the enemy politely said. It didn't strike us as a crazy request, but the nominee ducked the question.
If you want to review the way the nominee ducked, you can peruse the transcript. Or you can instead rely on the scripting gifted to you by the corporate stooges who tell our tribe what we should think about any such questions from any of The Others.
We're sorry to tell you that Judge Jackson ducked that fairly straightforward question. As a result, Hawley asked it again:
HAWLEY: ...You also told the defendant, you said this, this seems to be a case where you were fascinated by sexual images involving what were essentially your peers. And then you went on to say, the defendant was merely trying to satisfy his curiosity.
"Curiosity" is your word. One more thing on this, same idea, you said you were viewing—this as you spoke to the defendant—you were viewing sex acts between children who were not much younger than you. And this whole discussion is about why you're only giving him three months.
Judge, he was 18. These kids are eight. I don't see in what sense they're peers.
I've got a nine-year-old, a seven-year-old and a 16- month-old at home, and I live in fear that they will be exposed to, let alone exploited in this kind of material. I don't understand you saying to him that they're peers and that therefore, you are viewing sex acts between children who are not much younger than you. And that that's somehow a reason to only give him three months. Help me understand this.
"Help me understand this," the enemy once again politely said. This was the start of the nominee's response:
JACKSON (continuing directly): Senator, I don't have the record of that entire case in front of me. What I recall with respect to that case, is that unlike the many other child pornography offenders that I'd seen as a judge, and that I was aware of in my work on the Sentencing Commission, this particular defendant had just graduated from high school. And some of perhaps not all when you were looking at the records, but some of the materials that he was looking at were older teenagers, were older victims.
The nominee said that she didn't have the entire court record before her. At this point, she returned to the approach she took throughout.
She explained the fact that, as a judge, she'd had discretion in such sentencing matters. As se explained this obvious point, she failed to explain the way in which she had exercised that discretion. This was a fairly obvious dodge, so the enemy struck again:
HAWLEY: I just have to tell you, I can't quite figure this out. You said to him, this is a truly difficult situation. I appreciate that your family's in the audience. I feel so sorry for them. And for you. And for the anguish this has caused all of you. I feel terrible about the collateral consequences of this conviction. And then you go on to say sex offenders are truly shunned in our society.
I'm just trying to figure out, Judge, is he the victim here? Are the victims, the victims? You're saying that you are—you're apologizing to him. You're saying you're sorry for the anguish this has caused him?
There was a victim impact statement in this case. It didn't get read into the record, but it was there. I've described the videos that we have. You say, earlier in the case, you talk about how heinous these crimes are and you describe them, to your credit.
You describe how heinous it is, to your credit. And yet, here you are giving him three months, and apologizing to him and saying you feel sorry for the anguish it's caused him, and also saying you think that sex offenders are truly shunned in our society?
So just talk about that. Help me understand. I mean, is he a victim? Is that your view here? Is that what you said this? Is that what you meant by—
JACKSON: Senator I, again, don't have the entire record. I remember, in that particular case, I considered it to be unusual, in part for the reasons that I described.
I remember in that case, that defense counsel was arguing for probation, in part, because he argued that here we had a very young man just graduated from high school, he presented all of his diplomas and certificates and the things that he had done, and argued, consistent with what I was seeing in the record, that this particular defendant had gotten into this in a way that was I thought inconsistent with some of the other cases that I had seen.
"Help me understand," the enemy said once again. With that, the nominee returned to her "process" presentation. She explained that, as a judge, she was required to exercise discretion in her sentencing, without ever quite explaining why she had exercised her discretion in the way she did.
Was Judge Jackson the greatest nominee ever? As we watched, we were disappointed (and annoyed) by the way she kept responding to these straightforward questions.
To our ear, her responses to these questions were consistent evasive. Arguably, one reason why the questions kept getting asked was because of the fact that she kept failing to give forthright answers.
Eventually, the enemy even politely said this:
HAWLEY: But Judge, with all due respect, and I'm—I tell you what, I'll be direct with you.
I am questioning your discretion, your judgment. That's exactly what I'm doing. I'm not questioning you as a person. I'm not questioning your excellence as a judge, frankly.
But you said it—you had discretion. And I that's exactly what I'm doing. I'm questioning how you used your discretion in these cases.
"With respect to Mr. Hawkins," the nominee now said "I was doing what judges do, which is look at the statute 18 USC 3553, exercise discretion, as Congress has required us to do take into account all of the various aspects of a particular case and make a determination consistent with my authority, my judgment, and understanding fully be egregious nature of the crime."
To our ear, that was the same old rambling dodge all over again.
During Hawley's second round of questioning, the nominee was asked about what happened in 2019, when Hawkins was brought before her again.
At that time, she sentenced him to an additional six months of confinement. Why had that happened, the enemy now asked.
When the nominee said she couldn't remember what had occurred att at time, the enemy suggested that he pretty much didn't believe her.
Our stooges have expressed widespread shock that Hawley could have said such a thing.
Stooges, please! Hawley's reaction was the world's most obvious reaction. In real time, we had the exact same reaction, even bore the enemy spoke.
Fellow citizens, please! Presumably, Judge Jackson underwent a great deal of preparation for her confirmation hearings. For reasons which are perfectly sensible, nominees always do.
Hawley had reported, the week before, that he planned to explore these child pornography cases. It's very, very hard to believe that Jackson hadn't reviewed both parts of the Hawkins case. It's very, very hard to believe that she couldn't remember what had happened, less than three years before, when Hawkins appeared before her again and was sentenced to further confinement.
Why did Juge Jackson sentence Hawkins to three months? The prosecutors had asked for two years. The probation department had recommended 18 months. (We aren't discussing the guidelines.)
Why did Juge Jackson give that substantially lighter sentence? It should have been easy to explain. We'll guess the answer is this:
To her credit, Judge Jackson didn't want to sentence a teenager to a long stint in prison. She also may have felt, based on the evidence before her, that Hawkins wasn't a hard-core pedophile.
She hoped that he could get himself straightened out without recourse to a prison sentence which might have made it less likely, not more, that he could go on to lead a productive life. We'll guess that this explains the three-month sentence he received—and we'll guess that Jackson had been advised that she mustn't come out and say such things as that.
We'll guess that Jackson had bene advised that she mustn't say anything that would make her sound like "a bleeding-heart liberal," like someone excessively "woke." We'll guess that explains why she hemmed and hawed and kept avoiding a straightforward explanation concerning that three-month prison term.
We found it very, very annoying to see her hem and haw and avoid again and again. We found it disappointing.
We thought it made her look evasive. We didn't believe her when she said that she couldn't remember why Hawkins had ended up before her again in 2019.
We think Judge Jackson is better than that. We'll guess she got some bad advice during her preparation—but Judge Jackson is someone who has always tended to play by the rules and defer to the wisdom of elites.
At any rate, we saw nothing "shocking" or ridiculous in the question Hawley kept asking. One reason why it kept getting asked was fairly simple:
Politely asked again and again, the nominee kept refusing to answer.
These things were true except in the realm where our blue tribe's corporate stooges describe what the enemy did and tell us what we should think. With respect to the enemy's shocking conduct, our world is built around that construct now.
Our tribe loves that unhelpful construct, just like the other tribe does. We currently live in Two Different Worlds, and members of each of these warring tribes currently seem to enjoy it.
We think most people would understand the desire to keep a teen out of prison. We think the views of us the American people have evolved to that point.
Based on what we know, we're somewhat sorry that Hawkins got sentenced to prison at all. We think if Jackson had spoken forthrightly about this case, the public would have understood and might have liked her even more.
Hawley was asking a sensible question Jackson kept failing to answer.
Hawley even may have come to believe that Jackson really is "soft on" this particular crime. We have no way to know what he thinks. Neither do the corporate stooges who performed on CNN, rejecting his claims as "very, very untrue" before he had even advanced them.
We currently live in Two Different World. Each of these worlds is currently crawling with unimpressive stooges.
Full disclosure: Due to MSNBC corporate policy, we can't show you the various things Lawrence excitedly said.
"Empathize with our enemies," one writer has said. Could it be that the enemy has turned out to be Us?