The consensus says that the Brett Kavanaugh confirmation process and its narrow outcome pose a crisis of legitimacy for the Supreme Court.
And, within 24 hours of his swearing in, the newly minted justice acknowledged the clamor, and stepped forward to address the situation. He had hired his four law clerks, he announced, and all four are women.
In this way, he seemed to argue, he had expressed his devotion to gender equity. The whole controversy around that issue must have been a mistake.
Putting aside for now the riddle of why anyone might think that hiring female law clerks is a response to the industrialized trashing of a woman who accused you of sexual assault, we still face the question of how the hiring of junior federal employees became a vehicle for judicial self-expression.
And what exactly do these hires express?
Groucho Marx legendarily resigned from the Friars’ Club by writing to the membership committee, “I don’t care to belong to a club that would have someone like me as a member.”
Justice Kavanaugh embodies the polar opposite point of view—or way of life. We can’t ignore the fact that, in the end, membership is what this present moment is all about.
Kavanaugh’s career is a model of its kind—that is, of the kind associated with the distribution of ecclesiastical patronage in the more corrupt days of the Renaissance Church of Rome. Membership is its key.
Justice Kavanaugh wants, has always wanted, sought early, and apparently will pay almost any cost to retain, membership. Now, he is in a position to bestow its gaudy prizes.
He joined the Federalist Society and climbed on the escalator early. He held the handrail, and the process carried him smoothly through legacy admission to feeder school, where he cultivated “feeder professors” who fed him to “feeder judges,”until he had ripened into a “feeder judge” himself.
The prestige of the Supreme Court has always had a certain manufactured Wizard of Oz quality to it.
All that the Court’s work really requires is office space and a library for nine judges and their staffs. Instead the building where this work now occurs is a grandiose marble temple, a venue suitable for the ceremonial opening of beasts and fowl and the priestly reading of their entrails—a setting intended to awe.
It is not only the Republican versus Democrat partisan divide that threatens the Supreme Court’s legitimacy in the aftermath of the Kavanaugh hearings; it is also the glaring contrast between the Court’s pretensions to Olympian detachment and the reality of its for-the-members, by-the-members, majority that the Kavanaugh confirmation process has stripped bare.
What matters—if membership is to be achieved—is dedication to the simple position that it is essential that “our” team wins.
Membership means inclusion, but it also means that someone has to be excluded. For “our” members to win in any satisfying way, someone has to lose.
Our legacy admissions must survive; their affirmative action must disappear. Our sexual activities must be immune; women’s reproductive rights must be curtailed.
Membership requires maintenance: secret handshakes, tokens of arrival.
Justice Kavanaugh’s life is an unbroken series of these gestures.
When Kavanaugh invoked the appointment of his law clerks for a second time (during his speech at his ceremonial swearing in) it was to defend himself against charges of misogyny.
But that speech crystallized the fact that the confirmation was not a victory for him alone; it was a victory for the membership—for the idea of membership—that was being celebrated. Yes, these clerks were women, but they had been fed to him, and by the authorized feeders, in a process that makes the Freemasons look transparent.
It is worth remembering that while this episode has a right-wing cast of characters, the mechanism was painstakingly constructed over decades in reaction to (even emulation of) what the right saw as a prevailing liberal version of the procedure, with the ACLU and ADA pulling the levers and throwing the switches.
Consider this modest proposal.
Supreme Court and Court of Appeals clerks will be chosen from a diverse pool of qualified applicants, many with clerkship experience, by an eclectic, experienced, rotating committee (or committees) maintained by the Administrative Office of the United States Courts. The best young lawyers will be chosen as a class, and randomly assigned to individual justices and judges.
No “feeder” professors (such as Yale’s egregious “Tiger Mother,” Amy Chua, whose “look a certain way” advice to women aimed to make them delectable to Kavanaugh in his Circuit Court incarnation).
No “feeder” judges (such as the sex-addled Alex Kozinski, whose clerks were induced to accept without complaint his little porn seminars) or are involved in the process. No winks, no nods (for or against) from former clerks. No backs are scratched. No tactical silent acceptance of harassment to maintain one’s place is incentivized.
Throw out the whole corrupt, incestuous process, along with the sale of indulgences.
We might then get a diverse group: maybe, now and then, even someone from a state university! Maybe someone who didn’t know anyone they are supposed to know or exactly what suit to wear will get a clerkship.
I realize that this modest proposal of mine will be greeted as if it were Jonathan’s Swift’s modest proposal to use Irish babies as a food source during the Famine, but the howling will just show you how far things have gone. The protagonists no longer see anything odd about this process.
The professors will scream. Tough. There are law professors with bright students across the country. Distinguish yourself by your scholarship, not by your status as eminence gris.
Won’t the “magical” relationship of justice and clerk be undermined? Good. All of these people have actual families of their own, and the ersatz “family” of the judicial chambers is really a little icky, especially when financed by public funds, and it is saturated with power. These are public employers and public employees.
The clerk and the justice may not be ideological soulmates on their first date? Fine. A little friction might be a good thing. The justice is still the boss, the clerk still has to do the research, and maybe the two will learn from their dialogue. They can form their relationship while doing the work well, not through a grooming and matchmakers’ process preceding the hiring.
The justices will certainly be unhappy too: the incense-infused process of nominating and choosing clerks has become one of the expected perks of their job. An annual parade of interviews with fawning applicants provides a nice break.
They’ll live. There are other perks. Yes, it’s pleasurable. Why do we indulge them?
What I am proposing is not the end of the world. It is one very small step toward reclaiming the Supreme Court’s legitimacy by making it clear that it is a constitutional court that decides cases, not a royal or papal court that manages careers and distributes preferments.
The Court’s best strategy now (as Jennifer Rubin suggested in a recent Washington Post column is not to shout more loudly about its sacrosanct status but to take small—really very, very small—steps like this to strip away practices that have become normalized. (Giving up speeches to the members’ “feeder” organizations is another.)
Behave like a court in a democracy. Act as scholars and judges, not as courtiers.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.