We Are Missing the Point:  What the Kavanaugh Confirmation Says About Diversity

We Are Missing the Point:  What the Kavanaugh Confirmation Says About Diversity

It was nearly a year ago, last November, that I wrote about diversity and how women and minorities should no longer leave the task of diversifying the legal profession to “Big Law.”  More recently, in early September, the New York Times published an article about the American Bar Association’s study that revealed, wait for it:

“Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.”  https://www.nytimes.com/2018/09/06/us/lawyers-bias-racial-gender.html

This just is not news anymore.  It is only newsworthy that the legal profession appears to be more focused on diversity efforts now than ever before.  That focus, however, seems to be lost in the wake of the recent allegations against Supreme Court nominee, Brett Kavanaugh, who was accused of sexual assault by Professor Christine Blasey Ford.  Dr. Ford alleges, many believe quite credibly, that when she was 15 a 17-year-old Kavanaugh pinned her down in a room at an unsupervised party, covered her mouth to prevent her from screaming and tried to pull off her clothing.  Dr. Ford alleges that Kavanaugh was very drunk and that he only stopped when his friend, Mark Judge, jumped on them.  Judge has since denied any recollection of the incident (not under oath).  While this allegation is about an incident that happened 36 years ago, and no other such allegations against Kavanaugh surfaced before he was nominated to the Supreme Court, it is a serious allegation of criminal conduct.  More importantly, while we may never know with any degree of certainty what actually happened to Dr. Ford, or if Kavanaugh did actually assault her, Ford’s account is credible.  Judge Kavanaugh denies it ever happened.  Since those allegations were made public in mid-September, several other women have come forward with allegations of sexual misconduct against Kavanaugh.

As of now, the allegations do not seem to have slowed down the push by some politicians to confirm Kavanaugh’s appointment to the Supreme Court with lightening speed.  Now, I do not expect to make any new friends by stating this all too obvious point, but it must be noted that if Brett Kavanaugh was not affluent, white, male and conservative his nomination would already have been withdrawn or he would have agreed to withdraw himself from consideration.  Before you make the obvious comparison and say, “but Clarence Thomas was a black man,” let’s examine the significant differences between Thomas’ confirmation process and what is happening with Kavanaugh right now.  Thomas was called back for a hearing and he and Anita Hill gave testimony under oath AFTER an FBI investigation (I won’t comment on the adequacy of the investigation here) requested by President George H.W. Bush was leaked in the media.  That hearing, which re-opened the confirmation process, took place after the FBI report was used to conclude that Anita Hill’s allegations of sexual harassment were unfounded (again, I will reserve comment on the report and its conclusions) and Thomas was confirmed.  The Senate voted to confirm Thomas despite Hill’s allegations.  The Senate will also likely confirm Kavanaugh as well, but this time, it will be much easier and faster.

Both the President and the majority Senators on the Judiciary Committee have rejected all requests for an FBI investigation of Dr. Ford’s allegations, which would simply be a further background check involving the people and events of the time period when the alleged incident occurred.

Instead, I am listening to a Senate hearing today.  The only witnesses are Dr. Ford and Judge Kavanaugh.  The Republican Senators on the Committee have all ceded their time to question the witnesses to a female prosecutor from Arizona that they hired to cross examine Dr. Ford.  Notably, since most defendants do not testify, most prosecutors do not often cross examine witness.  In contrast, defense attorneys regularly cross examine witnesses, so the choice by the Committee to use a prosecutor is baffling.  Additionally, none of the other people present the night of the incident alleged by Dr. Ford will be called, including Mark Judge, the person Ford alleges assisted Kavanaugh.  At the very least Thomas had to endure an FBI investigation and give public testimony, despite how that all turned out.  Kavanaugh will simply be allowed to deny the allegations against him and endure nothing more than questioning by a Committee controlled mostly by men who support him.  Right now, I am listening to Kavanaugh give his opening statement, which is full of indignant finger pointing at Democrats and what he perceives as their hit job against him.  We will never know the whole truth, or anything close to it and this whole situation will end as a partisan fueled tragedy.

Let’s be direct about the situation, which would be much different if the nominee were female or not white and from the most elite class of private school educated Yale lawyers (not meant as a dig at Yale).  Say, for example, a female nominee had an abortion in college and had not disclosed this fact in her background check, or it was discovered she had an extramarital affair, but had an otherwise impeccable record.  Would the leadership of the Senate Judiciary Committee and so many conservative politicians and pundits be so quick to dismiss these facts as mere minor indiscretions that have no impact on her qualifications to be a lifetime appointed Justice of the Supreme Court?  Not a chance.  Her nomination would have been immediately withdrawn.  The appearance of impropriety matters, at least for most nominees.  That’s why Zoe Baird withdrew from consideration as Bill Clinton’s nominee for Attorney General when it was reported that she did not properly withhold and pay taxes on the wages she paid her domestic help.

Yet, now that a white, conservative poster boy of privilege in the legal profession has been accused of attempted rape back in his teens, his equally privileged supporters have been very quick to defend what has been characterized as a youthful mistake.  Remember, Kavanaugh simply denies it ever happened, however, whether or not it did does not matter to those who support him.  As far as the Senators in charge of his confirmation process are concerned, Kavanagh did all the right things coming up in the legal profession and fits into all the right boxes, so one “mistake” in the distant past, criminal or not, should not disqualify him, nor should he be scrutinized any more closely because of it.  Kavanaugh gets a pass because he is the product of our still mostly homogenous legal profession that continues to reward white male privilege and elitism.  If that statement makes you uncomfortable and reluctant to think about this issue, you are part of the problem.

The Kavanaughs of the legal world will continue to get a pass until we truly tackle the diversity problem in the legal profession.  Right now, everyone is focused on whether Dr. Ford’s allegations are true and if so, if they are serious enough to stop Kavanaugh’s nomination.  We are missing the point, because the truth does not matter, and we will likely never really know.  The real issue is that for anyone who is not like Kavanaugh, this would bring the process to a screeching halt, but for him it will be nothing more than a low speed bump, or a “hiccup” as Senator Dean Heller described it.  Until real diversification in the legal profession nullifies white male privilege, people like Kavanaugh will continue to get lifetime appointments despite the unresolved questions of their past alleged improprieties.  The rest of us will continue to be held to an impossible standard time and again.  Don’t miss the point.