<rk Times asked women what they hope the next generation will learn from Justice Kavanaugh’s confirmation battle. Forty thousand women responded, including Meredith Fiori, a psychotherapist who studied at Palo Alto University. Fiori said: “Due process has protected all Americans for decades—the days of being publicly lynched for unsubstantiated claims or assaults are over! Thank God.” I don’t mean to assign too much weight to one out of forty thousand responses to the New York Times question, but I think Fiori’s attitude is in line with many, many others. She is not at all alone in her analysis of the contentious confirmation process.
President Trump himself, in an apology issued to Justice Kavanaugh on behalf of the nation, declared that what happened to Justice Kavanaugh “violates every notion of fairness, decency, and due process.” To the justice, he professed, “You, sir, under historic scrutiny, were proven innocent.” President Trump seems either not to realize or not to care that Justice Kavanaugh’s confirmation hearings were not a criminal trial. Justice Kavanaugh was not a criminal defendant. He is not entitled to due process rights in a congressional hearing, in a job interview. He also was not “proven innocent” by the FBI probe or by the majority of senators who voted yes on his confirmation.
(Not to mention the fact that in an actual criminal proceeding, “not guilty” is not synonymous with “innocent” anyway.)
Clearly, this argument that Justice Kavanaugh deserved but was somehow denied proper due process is misguided. To invoke this reasoning is to either misunderstand or misrepresent the basic components and characteristics of the congressional proceeding that took place. But if we are going to discuss due process in relation to Judge Kavanaugh, let’s talk about the privilege he holds as a white man in America.
Most men in America will not be convicted of sexual assault, due to a number of social, political, and legal protections, but white men are particularly immune to consequences in this domain. Brock Turner, the Stanford swimmer who raped an unconscious woman behind a dumpster outside a college party, is probably the most high profile example in recent years of white privilege in rape cases. Turner’s father blamed his son’s actions on “binge drinking and its unfortunate results,” and insisted that the teenager should not receive prison time for his “twenty minutes of action.” Turner served an exceptionally short three months in prison after being found guilty of three felonies. Compare Turner to Brian Banks, the black former football star who was arrested at sixteen and served five years in prison for a wrongful rape conviction after facing an all-white jury. That is racism at play in our criminal justice system.
The argument that historically, “[d]ue process has protected all Americans” is just wrong. The United States criminal justice system, largely solidified during the Jim Crow era, is extremely racist. It was built in a racist context, with, in many states, definitive racist intentions to suppress blacks, to keep them in their “rightful place.” The criminal justice system continues to perpetuate racist social and political orders in countless ways.
Racial profiling, stop-and-frisk, racist sentencing disparities, and the school-to-prison pipeline are only a few of the phenomena that continue to plague black communities in the United States. Due process has not protected all Americans. It does not protect all Americans. Conservatives who denounced the “mistreatment” of Kavanaugh and the “denial” of his due process rights should consider joining the fight for due process rights for all.