Monday, October 1, 2018
Here; an excerpt:
Distinction at Yale is not tied all that closely to grades: The law school abolished traditional grades in the late 1960s, adopting a system whereby there are essentially only two grades: Honors and Pass. Career advancement is tied particularly to networking—making a few well-connected faculty members see themselves in you, so that down the line they’ll call their friends on the bench. Clerkships were an obsession: a good one, we gathered, had the power to make a career.
The resulting patronage system fostered a sort of self-interested blindness on the part of faculty and students alike. Most federal judges, in my experience, are reasonable and desirable bosses for the handful of clerks they employ each year. Some, however, are not. And all preside, even more than the standard boss, over a dictatorship. Federal anti-discrimination laws do not apply to federal judges. Meanwhile, given their stature and connections, federal judges hold tremendous power over the reputations and career prospects of their clerks.
Notorious among the judges to avoid, when I was in school, was Alex Kozinski, the appeals judge for whom Kavanaugh clerked. Kozinski retired last year amid a flurry of sexual harassment allegations by former clerks, junior staff, attorneys and judges who accused the judge of behavior ranging from explicit comments to forcible and unwanted kissing and groping. (Kozinski has apologized for making “any of my clerks … feel uncomfortable,” but has also disputed these allegations.) Kozinski’s sexual innuendo—both in chambers and on an email list of former clerks—has become infamous, but when I was in school, the rumor mill among students spoke only in hushed and vague tones.
Typically, at least one of Judge Kozinski’s clerks each year came from Yale, propelled in part by connections from law professors. For faculty, sending students to clerk for judges like Kozinski and Kavanaugh—“feeder” judges whose clerks often go on to clerk on the Supreme Court—is a point of pride, a way to further distinguish oneself in the upper echelons of the legal profession. But the self-interested blindness of faculty can lead to obvious and tangible harms for students who become clerks. Kozinski’s harassing conduct, it seems, was an open secret: visible to those who knew to look, while hidden to those who didn’t—or didn’t want to see.
In recent days, students have questioned what their professors knew but did not tell them about the likes of Kozinski and Kavanaugh—or what they knew and quietly hinted at. According to a report in the Guardian, Yale Law professor Amy Chua told a group of students last year that it was “no accident” that Kavanaugh’s female clerks “looked like models.” Chua also reportedly recommended that a female student send Chua photos of the outfit she planned to wear to an interview with him, apparently to confirm it included a skirt. (Chua denies all of this.) Chua’s husband and fellow professor Jed Rubenfeld, himself under investigation at Yale for sexual misconduct, reportedly warned a student to steer clear of two judges: Kozinski and Kavanaugh. (One of Chua and Rubenfeld’s daughters, meanwhile, recently accepted a clerkship with Kavanaugh.)....
And so the game goes on, not just in the halls of Yale, but in the halls of power. Those in power who think their self-interests will be served by Kavanaugh’s confirmation have made clear that they are not interested in taking steps to investigate the truth of the sexual assault allegations against him—straightforward steps like enlisting the FBI or calling witnesses in order to engage in genuine fact-finding. Their “truth” is simply that Kavanaugh is a good man, period—a “truth” that requires no further inquiry aside from that which is necessary to dramatize its reaffirmation. So they do whatever they think it takes to keep up the man’s reputation.
We owe each other more than this self-interested blindness—at least we do if a law school like Yale’s is to rest on something deeper than the pursuit of power and prestige whatever the cost. And we owe each other more than that in politics, too, if our government is to rest on something deeper than the self-interested “truths” of those in power. Such “truths” are not self-evident; they are not even truths at all.
(But see here for an unhinged take on this topic from a predictable source.)