Supreme Court

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Inadvertent Lessons from Judge Kavanaugh’s Confirmation Hearing

Heather Stinson

As the confirmation hearings for Supreme Court nominee, Judge Brett Kavanaugh, continue to heat up, with now three women coming forward proclaiming that there is a side to Judge Kavanaugh that should be known by the Senate Judiciary Committee before a vote as to whether he should be promoted to the highest Court, I am struck by two unrelated concerns.

First, is this notion that a person is only capable of being one version of themselves at all times, in all places, with all types of people. Many who have known Judge Kavanaugh in various capacities over the years have made statements or submitted signatures vouching for him, since in their experience they never witnessed any behavior that would give them pause or concern. In my previous role with the Independent Reconciliation Compensation Program (“IRCP”), which is tasked with compensating victims of childhood sexual abuse by clergy covering five different Diocese in New York, I learned quickly that people are in fact capable of being more than one type of person. Certainly, those who were victims of clergy sexual abuse also learned this lesson when they witnessed their abusers lovingly administering mass on Sunday after having raped them the night before. Many of those same victims were not believed because their families and friends in the parish could not square their good interactions with the parish priest with the allegations of abuse being lodged. Thus, we must dispense with the notion that Judge Kavanaugh, or any person for that matter, is only ever always good or always bad in behavior. After all, not even the vilest pedophile priest was abusive to all children in a parish, to some he was the embodiment of God himself. How can you get much better than that?

Second, is this idea that a man, giving a woman a job, is the definition of a woman’s rights supporter, and thus the inference goes, someone who would then be incapable of otherwise harming a woman—which has been raised as Judge Kavanaugh and his supporters push back on the allegations of possible sexual assault. Judge Kavanaugh has made a point, both in an interview and other statements, to praise his own record for how many female law clerks he has previously hired and later recommended to clerkships on the Supreme Court. It genuinely concerns me that women have a harder time obtaining certain caliber clerkships, even though women make up the majority of law students. Mostly though, when Judge Kavanaugh pats himself on the back for being so willing to hire women, to me it is as if he is admitting that he could have gotten away with not hiring women, or at least not so many women. So as these previous clerks vouch for him as a person who, based on their working relationship with him (which, it should go without saying, is not the context that is at question with the allegations) is incapable of sexually assaulting a woman, they are also admitting that they owe their careers to the benevolence of a man. It should concern the entire legal profession that for women, it is still men who are making or breaking their careers. Women obviously need both male and female mentors, and as such I don’t discount Judge Kavanaugh’s intention in hiring and mentoring women. Rather, I take issue both with the idea that a logical inference from his propensity to hire females is that he would be incapable of inappropriate behavior towards a woman in any context, and with the inadvertent admission that the legal profession is still a boy’s club, either because it is the boy who gets the job, or because it is the boy who graciously bestows the job to the girl.

As for the allegations themselves, my hope is that all involved, including Judge Kavanaugh, receive proper support and a fair hearing. Let us focus on what matters and dispense with distracting and erroneous ideas, such as the idea that a person is only ever all good or all bad. The purposes of the allegations being brought forward are to attest to the character and ability of a judicial nominee, period. If true, these allegations point to a side of Judge Kavanaugh that may disqualify him for this particular job. There are so few people who will ever sit in one of those nine seats it behooves us to make sure we ascertain all we need to know about a nominee before handing over that chair.

The Supreme Court Can Fix Qualified Immunity

The Supreme Court Can Fix Qualified Immunity

Daniel Becker

The doctrine of qualified immunity has come under increasing scrutiny. While Justice Sotomayor has led the charge for reform at the Supreme Court level, lower federal courts have begun to call for a reevaluation of the doctrine. One court called the current application of qualified immunity “overprotective of police and at odds with the original purpose of section 1983.” On the Fifth Circuit, Judge Willett criticized “the kudzu-like creep of the modern immunity regime.” Critics point out that qualified immunity is extremely difficult for plaintiffs to surmount, which often results in no remedy being granted for violations of a plaintiff’s rights. Two simple tweaks to qualified immunity may be able to bring the doctrine back to its roots and allow the validation of violated rights.

Courts apply a two-part test to determine whether an officer is entitled to a grant of qualified immunity. The first part of the test asks whether the officer’s conduct violated a constitutional right. The second part of the test is to determine whether the law was clearly established at the time such that the officer should have known that the conduct was unlawful. The purpose of qualified immunity is to protect officers when they act in tense situations where the law has not provided clear guidelines. Thus, qualified immunity is granted unless the officer violated a clear constitutional right and the officer’s conduct was clearly established as unlawful at the time of the incident.

Ideally, a growing body of case law would establish what conduct violates constitutional rights and would slowly eliminate the gray areas in the law. This, however, is not the case. The Supreme Court does not mandate that courts answer whether a constitutional right was violated. Courts often find it easier to decide that the law was not clearly established in a given case, instead of first finding that the conduct was a constitutional violation and then finding that it was not clearly established. Thus, the growing body of case law, which would gradually eliminate some of the legal gray areas around constitutional violations, never grows. This is precisely the point Judge Willett made in his concurrence. Avoiding the first test necessarily forces the stagnation of the second test because the law will never be clearly established. To fix this stagnation problem, the Supreme Court can mandate that lower courts apply both prongs of the test to all cases, which they were required to do from 2001 until 2009.

Another potential solution to the difficulty of prevailing on a claim that constitutional rights have been violated is for the Supreme Court to restore the ability of courts to examine the intent of the officer. This would move the qualified immunity from an objective analysis based on what a reasonable officer would do to a subjective analysis based on the officer’s intent when he performed an action. For example, the Supreme Court sustained a qualified immunity defense where an officer killed the driver of a fleeing car. The car was about to hit a spike strip when the officer opened fire. The officer would later tell his superior officer “How’s that for proactive?” Because qualified immunity is an objective analysis, these words could not be used in the Court’s legal analysis. Under a subjective analysis, however, those words could show the reckless disregard the officer had for the law and thereby bar him from successfully asserting qualified immunity.

Qualified immunity is an important doctrine. It tries to balance the interests of officers in performing their duty without fear of legal consequence, the interests of citizens in the protection of their constitutional rights, and the interests of society in law enforcement and protection from crime. The courts increasingly appear to have skewed that balance in favor of law enforcement. Spurring the growth of a body of case law to establish when conduct violates the constitution and allowing courts to look at the subjective intentions of officers would go a long way toward fixing the doctrine.