Of Yale, Bias, & Supreme Justice
I read an article, Yale’s Endorsement Of Brett Kavanaugh Reveals The Legal Establishment’s True Colors, by Andrea Nill Sanchez providing context to Yale's differing endorsements of their graduates Justice Sotomayor and Judge Kavanaugh for their respective supreme court nominations. I found myself nodding in visceral agreement. Of course, it would be bad in the courts just as it is in tech. Doesn't it just rankle that a woman who has overcome so much, to achieve so much, would still be judged by something other than her preeminent qualifications?
“She is a warm and wonderful human being, and a thoughtful and fair-minded jurist who will be an excellent addition to the Supreme Court.”
After watching the hearings on Nominee Judge Kavanaugh last week, I saw Justice Sotomayor on tour for her new book. What struck me most is how she addressed all audiences the guests, law students, and the next generation. I learned so much from her in one short hour.
She lectured about the roles and responsibilities of law and of the Supreme Court. A supreme court justice needs to make decisions with real human impact given limited information and limited experience. They need to carefully step into the shoes of each of the sides and find a solution that maximizes the accommodations of conflicting interests and needs. Justice Sotomayor explained this by way of a traffic light. Our need to reach a destination must be tempered by rules so that everyone is safe driving.
Here she is answering questions from kids, taking photos with them, and sharing her experience.
The justice also explained how hard she worked to become as good at public speaking as she is now. She recounted her efforts to improve her language and grammar so she could write effectively. As we left, I turned to my husband and whispered, "now I want to go back to law school."
The Justice has never had children of her own; this is her way of providing mentoring and teaching to children of all ages. In fact, the children's book was written to complement the middle school book, which in turn was written to complement her autobiography. She is even writing another book to help adults and children deal with people who are different, based on her own life with diabetes. Sonia Sotomayor has presented her own experience so that each of us can recognize ourselves in at. At the same time, she demonstrates the ability to reference and extrapolate that experience to empathize with others, who have very different experiences (such as parents, teachers, workers, et. al.).
So let's turn to Brett Kavanaugh, who was often pictured surrounded by children during his hearings while repeatedly, archly emphasizing his long record of coaching, teaching, and mentoring. His own children sat through the hearings (at times, with their teammates in uniform) to represent his deep commitment to the next generation.
The legal community point to his intellect, collegiality, mentoring, and teaching. I specifically chose the statements from professors of a similar vintage Carter '79, above for Sotomayor & Eskridge '78 below for Kavanaugh. These snippets easily support the claim by Ms. Sanchez in her article, that Yale references differ between genders.
"Brett Kavanaugh has been one of the most learned judges in America on a variety of issues, ranging from theories of statutory interpretation to separation of powers”
-William N. Eskridge, Jr
The "rave reviews" touted by a White House press release, however, belie the controversy his nomination has sparked amongst the Yale legal student body. The reviews were carefully worded to avoid a full recommendation, though he received high praise. Yale even released a statement that the nomination announcement was specifically not an endorsement according to Karen Sloan in her article for law.com.
"...Harvard Law professor Richard Lazarus, whose quote about Kavanaugh being 'an outstanding member of our teaching faculty' was included in the White House release, said Friday that many of the law professor comments fall short of actual endorsements. Lazarus said he deliberately took no position on whether the Senate should confirm Kavanaugh."
There was some disagreement about Nominee Sotomayor, citing concerns about bias and heart. There is no such worry, demonstrated by statements supporting the Kavanaugh nomination. This lends credence to the argument that the legal profession criticizes along gender, in addition to the split for praise.
"Senate Republicans will treat Judge Sotomayor fairly, but we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences."
-Senator Mitch McConnell (2009)
As Justice Sotomayor has often indicated, she has been confronted with her own biases and weaknesses at every turn. When a Princeton professor told her that her writing wasn't good enough, she studied at the library to improve her grammar, graduating summa cum laude. When she was concerned about her public speaking, she employed the same work ethic to master even the toughest scrutiny as she demonstrated in her nomination hearing.
Judge Kavanaugh has had at least the same opportunities as Justice Sotomayor. Both attended private Catholic secondary schools and ivy league colleges prior to embarking on their legal careers at Yale Law School. And yet, when forced to thread a needle through difficult subjects of race, policy, and judicial independence, there is a clear bar set by Sotomayor, that was not reached by Kavanaugh nine years later.
Even when pressed, even under the current political situation, Judge Kavanaugh gives paltry evidence that he will work to reach the level of Justice Sotomayor in either public speaking or the in his ability to set aside bias to find the common ground between conflicting interests.
Returning to the premise that the Yale endorsements are sexist. They may very well show indications of bias. However, even in these brief videos, the respective shoes appear to fit --and fit well. Sotomayor is warm, heart-driven, and reflects on her own biases often. Kavanaugh is highly researched, learned, humble, and a team player. Yale recommended Sotomayor for the Supreme Court. Yale provided high praise for Kavanaugh, yet there appears some qualification with his nomination.
“The ultimate measure of a man is not where he stands in moments of comfort and conveniences, but where he stands at times of challenge and controversy.”
-Dr. Martin Luther King Jr.
I am uneasy. What sort of father demands that his daughters and their friends sit for hours under the glare of international attention just to support his paternal narrative? How does a Supreme Court justice keep an open mind with no referential experience, the very basis of jurisprudence? Judge Kavanaugh offers us nothing and no insights into his character, with the imperative that we accept him as-is and on paper. The nominee repeatedly sputtered that he is unbiased and judicially independent without any demonstrable self-reflection. Although he, himself, was unaware of his own mentor's proclivities, he expects us to take references from those he mentored at face value --especially when those he mentored do not circulate to the same social mileux.
The GOP expectation is that we rush to judge the nominee by the color of his skin and not by the content of his character. This is a man who does not measure up and never has, even by the standards, biased or no, of his alma mater. In moments of comfort and conveniences, for Sotomayor, Yale set the bar based on prudence --or as Aristotle called it, phronesis. It would be unwise to stand on simple rhetoric in these trying times.