Nov. 6, 2018 — Four University of Houston Law Center faculty members recently reflected on the contentious confirmation process in October for U.S. Associate Supreme Court Justice Brett Kavanaugh. The "lunch and learn" discussion was sponsored by the Law Center's Diversity and Inclusion Committee.
Kavanaugh was nominated to the Supreme Court in July. In September, Palo Alto University Professor of Psychology Dr. Christine Blasey Ford brought forth an allegation that Kavanaugh had sexually assaulted her at a house party when the two were in high school. The Senate Judiciary Committee held public hearings on the accusation, where Ford and Kavanaugh testified, prompting an unprecedented national debate on the topic. Kavanaugh was confirmed and assumed office on Oct. 6.
Professor Ronald Turner, the A.A. White Professor of Law, drew parallels between Kavanaugh's nomination to Justice Clarence Thomas' in 1991. Thomas was accused of sexual assault by Professor Anita Hill, who was also called to testify before the Senate Judiciary Committee.
"There are some commonalities as to how Dr. Ford and Professor Hill were treated, and how their claims were addressed by the committee," Turner said. "When Professor Hill testified there were other women who wanted to testify in support of her accusations. The Senate Judiciary Chair at the time, Senator Joe Biden, decided not to bring those other claims forward.
"In the Kavanaugh hearing, Dr. Ford testified but other women brought forward claims that weren't fully investigated. Those persons were not brought forward to testify to the committee as well."
Assistant Professor Emily Berman raised questions about Kavanaugh's temperament based on his testimony. Berman referenced Kavanaugh's interaction with Sen. Amy Klobuchar during the hearing as a cause for concern.
"One of the most important qualities of the judicial temperament is the ability to empathize, consider or be persuaded by information that might conflict with your own worldview or your own experience of the world," Berman said. "An inability to consider alternative perspectives is particularly problematic from a judicial standpoint. I don't know if Kavanaugh can do that."
When reports surfaced that Kavanaugh was on the shortlist of nominees, Ford brought her allegation forward to The Washington Post and her congresswoman in early July. Ford wrote a letter to Sen. Dianne Feinstein on July 30 detailing her allegation against Kavanaugh. Feinstein notified the FBI of the letter on Sept. 13, three days before Ford went public with her accusation.
Associate Professor D. Theodore Rave, the George A. Butler Research Professor, suggested that the confirmation hearings played out about as badly as they possibly could have, and were clearly not aimed at getting to the truth of the matter. He asserted that both sides viewed the stakes of securing or blocking Kavanaugh's confirmation as too high to engage in a rational, fact-finding process.
"If we wanted to know what happened between Dr. Ford and Justice Kavanaugh in high school, the investigation should have been started in the summer," Rave said. "Once the information was public, that would have been the time to slow down and figure out what happened. Instead it was driven forward by an artificial deadline."
Professor Renee Knake, the Joanne and Larry Doherty Chair in Legal Ethics, joined the discussion via a pre-recorded video because she was testifying that day in Washington D.C. about proposed reforms to the federal Judicial Code of Conduct addressing sexual harassment and other workplace misconduct. Knake encouraged impassioned students to let their ideas and voices be heard on the topic.
"The power of a law degree is not to be underestimated," Knake said. "Keep having these conversations. A session like this shouldn't just end here. Send your work out to the world. Whether it's penning an op-ed, or a piece for a law practice magazine or writing a law review article. We need to not just be having these conversations, but also be proposing concrete reforms and documenting injustices."
Additional topics covered included the Senate confirmation process, sexual assault survivors' rights, judicial ethics, the partisan divide, implicit bias, gender shaming, the #MeToo movement and implications for the future of the Supreme Court of the United States.