World’s Easiest Job Interview? Handling Allegations In Supreme Court Confirmation Hearings

Recently, while interviewing a woman who had experienced work-related sexual assault, I heard something that has taken on particular resonance in the wake of Dr. Christine Blasey Ford agreeing to testify before Congress in Judge Kavanaugh’s Supreme Court Confirmation Hearing.  In my interview, the woman invoked Anita Hill and the Clarence Thomas Confirmation Hearing.  She talked about being a young girl watching those hearings with her family and about the lessons she took from that experience.  She told me that she learned then (and I’m paraphrasing here): victims of harassment and assault shouldn’t bother speaking up, that women won’t be believed and will be eviscerated for coming forward, and that powerful men will be protected reflexively by powerful men.

…powerful men will be protected reflexively by powerful men.

The President of the United States — who has his own history with sexual assault — is doing his best to prove her point. This afternoon, he said at a press conference “I feel so badly that he’s [Kavanaugh] going through this.  This is not a man who deserves this.”  In addition, Senator Grassley, who chairs the Senate Judiciary Committee, indicated that he would only hear from Dr. Ford and Judge Kavanaugh — no other witnesses who might help the Committee assess the reliability of the competing testimonies will be heard as a part of his Confirmation Hearing.

What might have been an opportunity to learn and grow from the mistakes the Committee made when conducting the Thomas Confirmation Hearing instead appears poised to be a painful recreation of 1991.  We seem to be just days away from teaching a whole new generation of young people that power and privilege — when concentrated enough —  immunizes the holder from any applications of meritocracy and accountability for one’s actions — at least as far as our federal government is concerned.

It’s important to keep in mind that we are talking about what is essentially a job interview for a position of near-unfettered power and influence that lasts for life.

All of these things matter.

When I counsel employers about how to evaluate what next steps they should take after an investigation into allegations of improper workplace behaviors, that assessment is never made in a vacuum.  For example, if there is an allegation that an individual occasionally makes off-color or offensive jokes, thinking about the implications of that conduct requires an assessment of the responsibilities held by that individual.  The assessment of how urgent and rigid the intervention ought to be may be different than if the person works by themselves in an internal role versus working in customer service or managing other people.  And if the person is in leadership, then we must take into account that who we select as our leaders are supposed to be held to a higher, not lesser, standard.  So it matters that the responsibilities Judge Kavanaugh would assume would empower him to alter how every single person in this country experiences the world.

It matters that it’s a job interview.  No one is owed or due a seat on the Supreme Court.  It is a privilege and an honor that should be bestowed on only the most worthy.  It is absurd to proceed as though Judge Kavanaugh is the only option that would satisfy the GOP wish-list for the role.  Considering the situation in the job interview context, what serious and responsible employer wouldn’t fully vet a job candidate, paying particular attention to allegations of violent conduct?  And most employers would weigh these sorts of allegations differently in circumstances where they already employ the person in question (and so would be considering discipline) versus circumstances where they have yet to hire the person (and so are thinking about rewarding something not yet given).  The proper process and evaluation one might use to weigh what implications Dr. Ford’s statements might have for Judge Kavanaugh’s ability to keep his current, already-prestigious and powerful job as a federal judge are different than what we should use to decide if he gets a new, even-more prestigious and even-more powerful job as a Supreme Court Justice.

It also matters that it’s a job interview for a position that never ends. What employer wouldn’t be extra special cautious when hiring for a lifetime?  There are times when employers take a risk on a candidate about whom they aren’t 100% certain, and I’m advising them to take that risk.  Situations where “lifetime” enters the picture aren’t it.

Timeframes are equally relevant when an employer is considering how to respond to allegations of inappropriate behavior.  After a first complaint where an employer can’t determine what really happened (e.g. because it is he-said she-said and other credibility factors aren’t conclusive), employers benefit from the fact that their next steps aren’t permanent.  They might decide to proceed with gentler interventions (such as a reminder on proper conduct, a coaching conversation from a supervisor, or an assignment of some additional training), assuming that they can always do more, later.  In essence, employers expect that, in most cases, they can impose stronger discipline, rescind responsibilities, or even terminate someone down the road quite easily, particularly if new evidence or additional complaints arise.

What the President and Senate decide to do here is about as close to permanent as you can get.

While a Supreme Court Justice can be impeached, a Justice has never actually been removed from the Court.  In 1804, Justice Samuel Chase came close, but Congress decided not to remove him.  All this means that what the President and Congress decide to do in the next few days regarding Dr. Ford’s account of assault is their only real shot at getting this right.

Most employers — most humans — when confronted with stakes that high would err on the side of caution.  And, if it isn’t clear, caution is not throwing one’s hands into the air, exclaiming “who can really know anything,” and then forging ahead as though nothing had happened.  Caution is not saying, “but he seems so nice, and I don’t want to hurt his feelings so let’s just run with it.”  Caution is not ignoring the fact that she told people about this years ago, that she didn’t seek out this attention, and that Kavanaugh’s supporting witness has said things in the past that raise legitimate credibility concerns in this context.  Proceeding in these ways — proceeding as the President and Senate Judiciary Committee appear to be moving — is reckless, not careful.

But care is what is needed here.  We need careful handling of our Supreme Court.  And we need careful handling of our national legacy.  Our children are watching and drawing their own conclusions and lessons.  We owe it to them and to ourselves to do better during Kavanaugh’s Confirmation Hearing.

* the author previously worked as Special Counsel to Senator Russell Feingold on the Senate Judiciary Committee. 

Katherine Kimpel

Kate Kimpel is the Senior Editor of Shattering the Ceiling and is also an accomplished civil rights lawyer. She represents women and people of color in discrimination cases (and other kinds of employment and civil rights matters).  When not lawyering, she likely is bragging about her hound dog Ulysses, inventing cocktails to serve at her next dinner party, or convincing her husband to watch reruns of a Joss Whedon television show (any of them will do). 

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