As I read the news reports regarding the Senate confirmation of the nomination of Brett Kavanaugh to the United States Supreme Court, I feel increasingly sick.  The whole mess is reflective of the sad state of American politics in the 21st century.  The recent allegations of sexual assault add to the ugliness in a way that’s becoming increasingly predictable in American society.  I find it depressing.  As a male who loves the women in his life, and who tries very hard to always treat women with respect, these headlines tear at my heart.  I’m torn between my desire to believe that those who wear the judicial robe, especially on our highest federal courts, are of the best ethical fiber of the legal profession, and my belief that most sexual assault claims are truthful.   I’ve been a lawyer too long to cling too tightly to either belief, but that doesn’t stop me from wanting those beliefs to be true.

I started my legal career as a criminal defense attorney, so it’s ingrained in me to think about the weakness of an allegation of misconduct or criminal behavior.  As every defense attorney knows, time favors the defendant because memories fade and witnesses disappear, which lessens the likelihood of a crime being proven beyond a reasonable doubt.  However, for the same reasons, time does not favor a person who is seeking exculpation or who has need to prove his or her innocence.  The skeptic in me wonders about the fairness of judging a 30-year event that is raised at the last minute in a highly political situation.  Another part of me fears an unethical ideologue, who may have an internal hostility towards women, deciding cases that determine the course of American law for years to come.

 However, as I read about this long-ago event, and I hear the stories of prep-school life, there is another part of me that is so tired of the “good ole boy” network that protects the privileged from their mistakes and from the legal system that they run and to whose judgments the rest of us are subject. I am weary of our nation being ruled by people who were born into a system of societal nobility that provides them with the best educations and the best opportunities while the rest of us work our asses off trying to climb the social and professional ladders as they take the elevator to the top based on a myth that they’re smarter, harder-working, and morally superior.  On paper they look great because their records are usually stellar given the protection they receive from their social class and the schools they attend. 

A friend of mine who is college professor recently shared with me his frustration at evaluating the grades of students from elite private colleges because of the well-known grade inflation at those schools where faculty must justify in writing giving any student a grade less than a B.  This grade inflation makes their graduates more competitive for admission to the best graduate programs, which in turn, increases the prestige of the private college. 

There is a caste system in our country that is driven by education inequity and the existence of a system of elite private schools and colleges.  Donald Trump, Barack Obama, George W. Bush, and George H.W. Bush, all went to private preparatory schools, as did 4 of our current Supreme Court justices.   It should also be noted that the public schools that the remaining 4 justices attended were either magnet schools or exceptional public schools.  None of our recent Presidents or current Supreme Court justices went to public schools that were struggling under-funded institutions located in poor neighborhoods.  Additionally, only 10 percent of American students attend private schools.  Clearly, graduates of private schools are grossly over-represented in the White House and on the Supreme Court. 

Of the current Supreme Justices, they all are alumni of either Harvard or Yale Law schools (Justice Ginsberg graduated from Columbia but was also a student at Harvard).  There are 205 law schools accredited by the American Bar Association in the United States, yet graduates of all but two of those schools are completely absent from the upper echelon of American law.  Justice Scalia, in one of his final dissents, noted the lack of diversity on the Court and wrote:

“the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. “ Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015)

It’s interesting that Justice Scalia wrote these words. Scalia grew up in Queens and attended public school through 8th grade.   He was awarded a scholarship to a Jesuit High School where he graduated as valedictorian.  I see him as someone who started out as an outsider who made that extremely rare transition to an insider.  The other interesting thing about Justice Scalia is the way that those who knew him, even when they disagreed with his judicial philosophy, spoke of his kindness and friendship.  Justice Ginsburg referred to him as her best friend, and Justice Kagan became his hunting partner.  Whatever his faults, and I take issue with a lot of his decisions, his reputation as a gentleman is legendary among those who knew him.

The promise of America has been of opportunity.  Growing up we are told one of the great things about our nation is that our potential in life is not determined by birth and parental lineage.  However, when you look at who gets to run the show and make the big decisions, it’s clear that promise remains unfulfilled.