We have recently witnessed a flurry of highly patriotic advocacy as thousands of my fellow law professors signed a letter to the Senate, arguing that Justice Brett Kavanaugh ’87 LAW ’90 did not display the impartiality or temperament necessary for promotion to the Supreme Court.
I came very close to signing the letter. But ultimately, I did not.
Why? Because I was struck by the contrast between posts by the law professors in my Twitter feed and the black people in my Twitter feed.
Black people reminded me that Kavanaugh’s partisan outburst, while clearly inappropriate, was hardly the most problematic aspect of his nomination.
One case kept popping up repeatedly in my feed — “Black Twitter,” as it is called. The case involved Brian Hundley, an African American dentist who trained at the prestigious, historically black Howard University College of Dentistry. He was killed by a police officer following a traffic stop. The officer’s defense, of course, fell into a familiar narrative — that he feared for his life after Hundley lunged toward him. Hundley’s estate sued the officer, alleging that the stop was unreasonable. It also alleged assault, battery and the use of excessive force.
Kavanaugh was part of the three-judge panel that heard Hundley’s case on appeal. Among the questions before the court was whether Hundley’s death was caused by the negligent stop. The jury decided that, while the initial stop was unreasonable, the officer was still justified in shooting Hundley. At the end of the day, the court concluded that the intervening event — Hundley’s alleged aggression — severed the causal connection between the negligent stop and the shooting, and ordered a new trial.
I soon realized that the legal details of the case were beside the point – this was not the primary motivation for Black Twitter posting this case. Indeed, there are many cases in which members of the judiciary display much clearer hostility to black life. There are stronger reasons to oppose Kavanaugh than the Hundley case. Personally, this is not the hill that I would die on.
So why was Black Twitter posting the Hundley case?
The case took off on Black Twitter after Kavanaugh complained that his life had been “destroyed” by Christine Blasey Ford’s allegations. Black Twitter’s scorn for Kavanaugh was palpable. Using the Hundley case, Black Twitter reinforced what it really meant for a life to be destroyed. It was Hundley’s family, not Kavanaugh, who had reason to cry. Moreover, even the most “respectable” black man, an elite dentist, could not have gotten away with Kavanaugh’s disrespectful behavior at that Senate hearing without putting his life at risk. Black Twitter was using the contrast between Hundley and Kavanaugh to underline its contempt.
The implication was clear: Black Twitter had, long ago, written off Kavanaugh. Although black people are hardly a monolithic group, one is hard pressed to find a black person on Twitter defending Kavanaugh. The question becomes: How did we get here?
As law professors, we need to level with the country. America has a serious problem of institutional corruption, using its institutions to marginalize minorities. Black Twitter’s point was that they increasingly view the judiciary with the same disdain that they view other institutions. In the face of an increasingly diverse voting population, the Republican party is in danger of becoming a white minority regional party. In an attempt to stave off what is surely inevitable, the president, whose own electoral legitimacy is at issue, has implemented a range of measures to marginalize those whom he perceives to be unlikely to vote Republican: African Americans, Latino Americans, Muslims, young voters, immigrants and so forth. Black Twitter’s point was that we now face the prospect that the Court will acquiesce to a range of constitutionally problematic measures, including the curtailment of voting rights, following in Congress’ steps.
All of this was in motion long before President Donald Trump set foot in the White House. Trump simply tore the mask off — with Kavanaugh’s help.
From a young age, black parents have “the talk” with their children. Rather than emphasizing lofty principles like “color blindness,” they educate their children about institutional racism and the very real dangers of black life.
Kavanaugh became a metaphor for Black Twitter’s increasing contempt for American institutions. Black children who assume that they will be treated in an “impartial” fashion by state actors — including those with the appropriate “temperament” — will likely be disappointed. In their encounter with state actors, it is better to tell black children to behave as though their lives are on the line. While these talks with their children are deeply depressing, black parents do this to avoid worse realities.
Indeed, this is the type of blunt conversation that people should have when they understand that the stakes are extraordinarily high. This is why law professors need to be brutally candid in communicating with the country, rather than resorting to lofty conversations about impartiality and temperament. Kavanaugh’s recent confirmation is simply the latest iteration of a long-standing threat to the country’s judicial branch. For law professors to tell their fellow citizens anything less is to coddle the country.
Although it is inspiring to see legal elites organizing to try to save the perception of “impartiality” by emphasizing the importance of “temperament,” Black Twitter is correct: We are long past that point. Instead, law professors need to take a cue from black parents and Black Twitter.
Americans need “the talk.”
Eleanor Marie Lawrence Brown a Yale Law alumnus, is a Professor of Law and International Affairs and a Senior Scientist at the Rock Ethics Institute at The Pennsylvania State University. Contact her at firstname.lastname@example.org .