[Women protest Brett Kavanaugh’s nomination to the Supreme Court by dressing in black and wearing veils. Image via Phil Roeder/Flickr/CreativeCommons]
By Kimya Forouzan, Vice President, If/When/How Board of Directors
I spent every free minute I had last week glued to a livestream of Judge Brett Kavanaugh’s confirmation hearings. Every minute was intense, because so many of us know exactly what is at stake. However, perhaps the most infuriating theme was Judge Kavanaugh’s attempts to absolve himself of criticism about his questionable record on women’s rights, racial discrimination, and the rights of immigrants and other marginalized people by citing individuals — mostly women and people of color — to whom he has offered mentorships, clerkships, or coaching opportunities.
Prior to the hearings, many of Kavanaugh’s former students and colleagues wrote articles in support of him — stating that he had been a great law school professor and that he had hired a “diverse” group of law clerks. This theme continued through the hearings. Kavanaugh frequently cited his professional relationships with women, specifically the female clerks he has mentored and the girls’ basketball team he coaches. He spoke about volunteering to serve food to homeless individuals.
When Senator Cory Booker questioned him about the racist implications of voter suppression, part of Kavanaugh’s response was to cite his attendance of Black Law Students Association meetings. He stated, “I started — on my own — going to the Yale Black Law Students Association every year starting in 2012,” saying he’d like to “come speak about minority law clerk hiring because I’m told there’s a problem.”
Some of Kavanaugh’s former students and clerks also testified about the judge’s his mentoring efforts, general demeanor, and willingness to go to lunch with them.
While there is no reason to doubt that Judge Kavanaugh has been a valuable mentor, basketball coach, and volunteer to a number of individuals and organizations, the reality is that this is not the basis by which we should judge whether someone is fit to serve as a Supreme Court justice. NYU Law Professor Melissa Murray said it best during her testimony, noting that this nomination is “not about how Brett Kavanaugh treats a handful of women from elite institutions. It is about real people on the ground… who will not have lunch with Brett Kavanaugh.”
People can, and often do, value individuals who hold certain identities while simultaneously supporting policies that harm or disadvantage them.
As Professor Murray stated, all of these testimonies painting a favorable view of Kavanaugh’s character have a common refrain. We hear it often in our society. Someone is accused of biased behavior, and they defend themselves by pointing to someone they have a relationship with who also holds that identity. Think: I can’t be sexist; I have a daughter! or I’m not racist, I’ve worked with Black colleagues!
By allowing and accepting these types of responses, we commodify individuals without addressing the greater systemic forms of discrimination that are enacted against them. And the commodification did not end with Judge Kavanaugh. One witness testifying in favor of Judge Kavanaugh, Colleen Roh Sinzdack, an attorney and former student of Kavanaugh’s, highlighted her pro bono efforts to challenge the Muslim travel ban to emphasize the extraordinary nature of her endorsement.
This tendency to separate relationships with individuals from their support for policies that would negatively impact marginalized communities as a whole is something I have been familiar with my whole life. Growing up in a town with a majority white demographic, I had many friends, neighbors, and classmates who loved me as an individual. People who truly counted me — an Iranian-American woman from an Iranian-American family and community — as someone with whom they had a close, perhaps friendly or even loving, relationship. And while they loved me, my family, and my community, that did not mean that they saw the value of diversity or the ills of systemic racism as a whole. While they had no problem being our friends, coming to our home, eating our food, and treating us as people they valued as individuals, that did not mean that they would not turn around, vote for Trump, and support the Muslim travel ban the next day.
People can, and often do, value individuals who hold certain identities while simultaneously supporting policies that harm or disadvantage them. And it is repeatedly legitimized with personal testimonies — though certainly very few of them end up being made under oath, during Supreme Court confirmation hearings. But we know what they sound like: There’s no way that person would say something racist — they have friends who are people of color! or There’s no way that person would sexually harass a young woman — they are a good father!
It is a function of the biased society in which we live that we are so reluctant to believe that those around us who hold power and influence (or who desire those things) could have many faces, not all of them kind. America and Americans are culturally invested in ideas of personal triumph against adversity — the bootstraps narrative — which attributes success to hard work and anything less to laziness, carelessness, and a lack of mettle. Individualism as a core value gives those who don’t wish to see systemic oppression the ability to keep their eyes closed.
We are so reluctant to believe that those around us who hold power and influence could have many faces, not all of them kind.
We cannot dismiss serious concerns about the way Brett Kavanaugh will interpret laws on which the freedoms of millions rest with feel-good stories about his congenial relationships with a few people who hold marginalized identities. This is sheer tokenism, and it should not be the basis by which we evaluate the fitness of a Supreme Court justice. If confirmed, Judge Kavanaugh will have a lifetime appointment on the highest court in the country, a role that will have profound impact on so many. As attorney Rochelle Garza — counsel for Jane Doe in her quest for a legal abortion — stated during her testimony, “Constitutional law isn’t just this thing in the clouds above everything else, it actually has a direct effect on people.”
And if his previous record is any indication, Judge Kavanaugh’s decisions will likely harm those who are already marginalized in our society, no matter who he eats lunch with.
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