[NOTE: As we grapple with issues swirling around the Judge Kavanaugh nomination, I shared the following remarks with Winsor students in Assembly today, October 4, 2018. To provide context about the Senate hearings, I also showed an brief excerpt from a "PBS Newshour" broadcast. After the video, Lower School students went on to small group discussions with their faculty advisors, while Upper School students stayed to hear perspectives from four Winsor sophomores. As I said in closing, we are starting—and for many, continuing—a conversation today. Please keep the dialogue going.]
Some of you will remember that, last year, we heard from Stephen Breyer, Associate Justice of the United States Supreme Court. He told us what justices do all day, what their clerks do, how many cases get referred to the court and how many end up on what they call the docket. I think it’s safe to say that he was wonderfully impressive, funny and smart, respectful and kind. He was optimistic about the future and about the Supreme Court itself. I think he made us all really like the Court.
I am going to talk about the issues raised by the current nomination process, but I thought it might be helpful to give a little history and context first.
The Judiciary Act of 1869 stipulates that the Court will have one Chief Justice and 8 Associate Justices, though it has operated with fewer than 9 justices, most recently after the death of Antonin Scalia in early 2016. Currently, the justices on the court are: Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Sonia Sotomayor, Elana Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Chief Justice John Roberts.
Once a president nominates someone to be a justice on the Supreme Court, the Senate then needs to advise and consent to the nomination. If they do, then the person is confirmed to the Supreme Court. First the Senate Judiciary Committee reviews the nominations and evaluates the nominees’ qualifications to the Court, including any relevant documents and interviews that seem appropriate to their nomination. Then they hold a vote and if they vote to approve the nomination, then it goes to the full Senate for a vote. If the full Senate votes to approve, then the person is confirmed. A justice on the Supreme Court has a lifetime appointment and serves until he or she chooses to retire or until he or she dies. (A justice could be impeached but that has only happened once in the history of the Court and is, typically because of the exhaustive screening process, exceedingly rare.)
In July of this year, President Trump nominated Brett Kavanaugh to fill the seat vacated by retiring justice Anthony Kennedy. Interestingly, Kavanaugh had actually been a clerk for Kennedy 25 years ago, and so the two know each other. Kavanaugh is currently a sitting judge on the U.S. Court of Appeals for the DC Circuit, and has therefore been through confirmation processes before.
His confirmation process began with a hearing before the Senate Judiciary Committee on September 4. During the process, a letter went public accusing Kavanaugh of sexual assault. The letter was written by Christine Blasey Ford, a professor at Palo Alto University and researcher at Stanford University; the letter referenced an event that occurred when Ford and Kavanaugh were in high school. After a great detail of turmoil and discussion, the Judiciary Committee postponed its vote in order to question Dr. Ford and Judge Kavanaugh about this matter. Many of you watched that day of interviews last week, or saw excerpts from them later on. The next day, the Committee voted to send the nomination to the full Senate. Soon after, Senator Jeff Flake helped to persuade the Senate that an FBI investigation should occur before a Senate vote. That investigation has been happening this week, and just concluded last night. As of now, there are plans for the Senate to vote tomorrow. And, since the day that Dr. Ford and Judge Kavanaugh testified, there have been other claims about Kavanaugh’s behavior and actions in high school and college, and a great deal of discussion about the qualifications and temperament a Supreme Court Justice should have. There are accusations flying, and questions about whether Kavanaugh’s behavior now or in the past should disqualify him from serving on the Supreme Court. For everyone who thinks that something has proven Kavanaugh unfit to serve on the Supreme Court, other people have seen a man defending himself appropriately or have said that none of the actions have bearing on how he will be as a justice. It’s very complicated. And it is important to note that these hearings are not a trial; they are hearings to determine whether the Senate agrees with the President that Judge Kavanaugh would make a good Supreme Court Justice. The complexity of this moment has been made all the more so because this process has been derailed by politics from the thoughtful, deliberative, and impartial process it has often been. Whatever we think about people involved, everyone agrees that these hearings no longer have integrity, objectivity, and attention to what it means to confirm someone to the Supreme Court.
Throughout the history of the Supreme Court, the vast majority of nominees have been approved, but there have been rejections and withdrawals along the way. Many people would point to Robert Bork’s nomination in 1987 as a turning point in the nomination process, one that was partisan, marked by argument and a lack of civility, and bitter throughout. Nominated by President Ronald Reagan, a Republican, Bork had been interested in the job since the Nixon era. The Democratic-majority Senate Judiciary Committee, led by Senator Joe Biden, rejected his nomination, but Bork still insisted that it come to a full vote before the entire Senate. His nomination was rejected again.
Then, in 1991, came a moment that feels to many of us like the moment we are currently in as well. President George H.W. Bush nominated Clarence Thomas to replace retiring Justice Thurgood Marshall. Similarly to the way this current nomination is playing out, Thomas was almost through the Judiciary Committee hearings when a FBI report was leaked, alleging that Thomas had sexually harassed Anita Hill when she worked for him at the Department of Education and later at the Equal Employment Opportunity Commission. Hill was the only person testifying before the Judiciary Committee, and the questioning was sometimes hostile, splitting the country in many ways. There were accusations that this was a move to discredit an African-American conservative thinker, and Thomas himself called the hearings a “high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.” Despite Hill’s claims that she had repeatedly been the victim of Thomas’ harassment, Thomas successfully portrayed himself as the victim and Anita Hill as the aggressor. At the time, Hill was not believed by a majority of Americans, though that has changed over the years since then. Soon after her testimony, the Committee and then the full Senate voted to confirm Thomas and he has been on the court since then.
So why is this moment so significant for so many of us?
Perhaps because of the allegations made by Dr Ford, which are more familiar in this #MeToo era. Women have lately finally felt that they could speak up about ways they have been treated that were not right, sometimes extremely harmful, and even sometimes illegal. For years, women have felt that if they talk about ways they have been mistreated or have been violated, they will not be believed because these situations rarely have witnesses, rarely have traditional evidence, and because they are traumatic and are rarely remembered perfectly. It is, for all these reasons and more, very hard for women to come forward and say what has happened to them.
Many women were proud of Dr. Ford for speaking up in a situation in which she was clearly the least powerful person in the room. She was sitting at a table facing a wall of senators who were all literally above her, most of whom are white and most of whom are male. She spoke calmly and carefully, with as much detail as she could offer. Judge Kavanaugh followed with testimony that had rage, tears, and accusatory questions. It seemed like an unfair balance of power to some people. One of the Judiciary Committee senators actually started yelling in outrage at one point about the injustice he thought was being perpetrated against Kavanaugh. Whatever this is, it doesn’t seem like a deliberative process designed to identify whether a nominee has the qualifications to serve on the highest court. Many women in the country felt, in the way that Dr. Ford was treated and was characterized before and after her testimony, that we have not really made any progress as a country in how women are seen and how they are treated when they come forward with their testimony about being assaulted.
Judge Kavanaugh does deserve a fair and thorough hearing. He has been attacked in very strong terms throughout this nomination process, and it would be weird for him not to be angry about it. Well before Dr. Ford’s claims, Kavanaugh was being called “evil” in the press. Still, the Code of Conduct for US Judges holds a high standard for them. It says, “A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism [Canon 3]... Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct [Canon 2A].” We should have a fair and thorough hearing, and proper deliberation should occur in the Senate. But it might not; in fact, it probably will not. Nevertheless, you might recall last year Justice Breyer told us that the hallmark of the United States has been that we obey the laws and the rule of law, even and especially when we do not agree with them.
So what are some of the things I am thinking about right now?
I wanted us to meet together to acknowledge the moment we are in. People are very angry right now, and Dr Ford’s accusation of sexual assault is forcing a lot of people to confront the kinds of behavior that was not uncommon in private schools and colleges in the 1980s. It’s also prompting women to remember experiences they had that are very hard for them to remember, experiences that were hurtful and that they still live with. I think a lot of you are wondering about not just the politics of all this but whether women have made progress, and how vulnerable we all might be.
I am terribly worried about the partisan nature of all this, with everyone only believing their own “side” and not listening to one another. There is no respect left in the federal government that we see on TV and in the media. I am worried that this will make you cynical, that it might make you think that government is always bad, or always populated by people who serve their own interests rather than the nation’s. I worry that you might think it’s not worth fighting for the truth, or fighting for what is right.
I also worry that maybe it isn’t any easier to be a woman in this world than it was 20, 30, 50 years ago. I want you all to feel safe wherever you are. I don’t want you ever to have someone whistle at you like you are an object, or violate your boundaries in any way, or make you feel powerless or small or weak. I want you to be confident that you are equal to anyone in any room you’re in. And I don’t want it to be solely your responsibility to ensure that you are safe and well-treated and respected wherever you go. That’s everyone’s job.
So, when I think about my big questions, I think that we are seeing a problem that is really everywhere. Whatever we think of Judge Kavanaugh, and whatever happens in this nomination, the issue of how women are treated has been brought before us in stark terms. The disrespectful and sometimes abusive treatment of women happens in all classes, all races, all ages, all neighborhoods. It is a systemic problem and, from my perspective, it is not particularly helpful—no matter how angry I might get—to try to blame someone, or even a small group or institution. Everyone I have spoken to, in all our peer schools, throughout this city and across the country, wants things to be better. Everyone wants change. And that’s what we have to work for.
No matter how angry we get, I want to say here that the world is more full of good people than bad, by a huge margin. And more people want to help one another than think only about themselves. Last week, a group of Class VI students asked me to meet with them to start talking about all the issues raised by these hearings, to find their voices, to help empower themselves and everyone here, to look for role models, to analyze the problem and find solutions, to practice respect, to make sure that every single student at Winsor feels supported and able to participate in a discussion about any aspect of this issue they want. And that we are all in it together. And that is a large part of why we are doing this right now. Change comes from you and it always has. Thank you for your questions, your commitment to justice, and your belief in one another. No matter how this particular moment plays out, in the longer run, you will prevail.
So, we are starting a conversation today (or continuing one) but that it will not have closure today. Nor should it. So I encourage you to talk with your friends and family, and keep the dialogue going.