The Kavanaugh confirmation as a mirror onto America

(image courtesy of getdrawings.com)

Here in America, we have just endured an extraordinarily ugly and partisan confirmation process for a U.S. Supreme Court nominee. Events leading to the confirmation of Brett Kavanaugh to be the next Justice of the U.S. Supreme Court now comprise a terrible episode in our political and legal history. This will reverberate on many levels for a long time.

Kavanaugh, a U.S. Court of Appeals judge, was nominated by Donald Trump to fill a vacant seat on the Supreme Court. Late in the confirmation process, several women accused Kavanaugh of sexual misconduct when he was in high school and in college.

Psychology professor Christine Blasey Ford was the first and most prominent accuser, alleging that during high school, a drunken Kavanaugh and his friend attempted to rape her. She and Kavanaugh both testified about these allegations before the Senate Judiciary Committee on September 27. The debates over these allegations and Kavanaugh’s suitability for confirmation have dominated the national news coverage and everyday conversations across the country.

I make no claim to objectivity on this topic. I was among some 2,400 American law professors who signed a public letter expressing concerns about Judge Kavanaugh’s judicial temperament and urging the U.S. Senate to reject the appointment. However, my purpose here is to pull back on the camera a bit and examine the destructive impact of this episode on America’s civic, political, and legal culture. Here are some of the key dimensions:

A deeply divided country

If America needed yet another painful reminder of its deep political and ideological divisions, this was it. It’s too early to predict exactly how this will affect future national elections, but it will play a major role in shaping political discussions.

Trauma and abuse

For trauma survivors, especially women who have experienced sexual assault, these events may have been alternately re-traumatizing, empowering, sorrowful, clarifying, angering, depressing, and validating. It has been a very difficult and trying two week period for many. It remains to be seen whether this will galvanize a movement to call greater attention to sexual assault, psychological trauma, and the rights of abuse victims.

Toxic masculinity

The mocking and trashing of women who courageously gave credible accounts of sexual assault was horrific and outrageous, especially when it came from men in positions of power. It’s time to mainstream the term toxic masculinity and to understand that this behavioral dynamic is very much a part of American culture.

Getting to the truth

Thanks to boundaries set by the White House, the FBI’s investigation into allegations against Kavanaugh was grossly inadequate and gave all appearances of providing cover, rather than searching for the truth. Neither the accusers’ allegations nor Kavanaugh denials were subjected to a thorough vetting, and numerous possible witnesses were ignored.

High school

Believe me, a lot of people people experienced vivid flashbacks to high school during these events. For some this was accompanied by uncomfortable memories and contemplations about behavioral excesses during adolescence and early adulthood.

Class privilege

Matters of class privilege played out prominently. Media coverage of student life at elite private high schools and Ivy League career networks gave detailed, snapshot examples about how such advantages manifest themselves early in life and continue through adulthood.

Public job interview

My own impressions of Kavanaugh notwithstanding, I would not wish upon anyone this equivalent of a job interview in the form of a public ordeal, with millions of people watching the proceedings and discussing very personal and normally private aspects of an applicant’s life. It made for a tawdry spectacle.

Institutional credibility

The reputations of both Congress and the Supreme Court took well-deserved hits. And thanks to Kavanaugh’s highly partisan language and angry, threatening tones towards his opponents in his September 27 testimony, his credibility as an impartial judge is forever suspect. With that suffers the credibility of the Supreme Court as a judicial body.

Bullying behaviors

Accusations of bullying behaviors flew back and forth between both sides. While few incidents rose to the kind of virulent bullying discussed often on this blog, the proceedings were rife with incivility and name calling.

Conservative bloc

The Kavanaugh confirmation gives the conservative bloc of the Supreme Court the votes it needs to advance a sharply right-leaning legal agenda for years to come. We are very likely to see reversals in civil rights and workers’ rights as a result.

***

The events surrounding the Kavanaugh confirmation process will be studied and discussed for many years. Kavanaugh’s votes and judicial opinions will be scrutinized closely against the backdrop of how he was confirmed. I don’t have much optimism for the civic aftermath of what we’ve just experienced, but I hope that I’m wrong.

Getting beyond the justice lottery of the #MeToo movement

When Fox News program host Gretchen Carlson agreed to a $20 million settlement of her claim accusing Fox News chairperson Roger Ailes of sexual harassment, it helped to spark a movement underscored by the harsh reality that behaviors prohibited under law still manage to flourish in too many workplaces and other settings.

However, for those who have been victimized by sexual harassment and assault, the #MeToo movement remains something of a justice lottery, with some folks more eligible to win than others. A small number of women — mostly in positions of prominence — obtain very large settlements or verdicts in civil claims, and/or pursue successful criminal prosecutions of their abusers. Meanwhile, many others are left to look at these highly publicized outcomes and wonder what it will take to get similar results in their situations.

Please don’t get me wrong. The #MeToo movement is overdue and vitally important. It’s just that there’s a lot more progress to be made before the results obtained in headline-making cases become the norm rather than the exception. This will require cooperative grassroots organizing and support, legal and policy advocacy in the trenches, and media outlets willing to give voice to the stories of all victimized individuals. It also would help if those who are influential within this realm commit to the proposition that the #MeToo movement is not done until it reaches all walks of life.

After all, the chances of obtaining justice should not rival the odds of buying a winning lottery ticket.

“Because you asked….”: How to support victims of interpersonal abuse

One of this blog’s recurring themes has been interpersonal abuse across the life spectrum, and with it the importance of understanding of trauma in different contexts. My dear friend Mary Louise Allen, a psychology professor and activist, has become an emerging voice for trauma victims, and I’d like to share a compelling piece that she just published.

Mary Louise has experienced abuse and assault, as well as repeated institutional stonewalling and legal irregularities in her efforts to obtain assistance and justice in her home state of Ohio. Recently, she was asked how someone could support abuse victims who are dealing with ongoing trauma. This prompted her to write “Because you asked….,” and post it to her Unapologetic Civil Rights Activist site. It’s a brave, heartfelt, and intelligent statement. I’m excerpting parts of it here, and if you want to learn more about her experiences and those of others, then please read the full entry.

1. VOICES
Listen to our voices.  The one thing that I can conclusively say is that silencing me and allowing a network of corruption to define my story with no ability to correct the fallacious version did me a grave disservice – ultimately causing my dire health conditions and current daily struggles. . . .

***

2. CRAZYMAKING
Don’t dismiss us as crazy. While our assertions appear, on face value, to be so outrageous that they must be fictitious, rest assured that most of us possess recordings and documentation that validate our allegations. . . .

***

3. VICTIM-BLAMING/SHAMING
Be cautious of victim-blaming/shaming questions. While I would like to think that the proverbial “why did you stay” interrogatory has dissipated in our society, it has not.

***

4. POLITICAL ACCOUNTABILITY
I implore you to consider your votes.  If these officials remain in office, your daughter, your sister, or your mother could be a future victim. . . .

***

5. MEDIA ACCOUNTABILITY
Tag your local newspapers/news stations asking them if they have covered our stories, via links to our publications. . . .

***

6. BOARD MEMBER ACCOUNTABILITY
Hold board members accountable.  As seen in the case of [Olympic gymnast doctor Larry] Nassar, how many children would have been protected had the board taken action? . . .

***

7. ATTORNEY ACCOUNTABILITY
While I understand that everyone is entitled to representation and false reports exist (approximately 3%), I do take issue with law firms who are knowingly involved in harassing a victim, sustaining the chilling effect, and/or neglect their due diligence of representing the victim. . . .

***

8. NONPROFIT ACCOUNTABILITY
Do not contribute to nonprofits who cooperate with the system. . . . Every single nonprofit organization in the state of Ohio whose mission was to assist me and my situation configured asinine excuses as to why they could not help . . . .

***

9. HOSPITAL ACCOUNTABILITY
Ask hospitals of any statistics of mysteriously lost rape kits. . . . Often, the alleged assailant is a police officer, an attorney, a high-profile business official – but most assuredly, a well-connected man. . . .

***

10. ACCOMPANY VICTIMS
Don’t assume that justice prevails. Consider accompanying victims to court hearings. I was treated with an entirely different demeanor when I had supporters present – as opposed to attending by myself where I didn’t want anyone to know what was happening. . . .

***

11. STATE LAWS
Oppose mysteriously passed state statutes abusively used to oppress and silence victims/witnesses. These statutes are often masked in an apparent attempt of genuine propriety but often abused to silence victims, witnesses, and Whistleblowers. . . .

***

12. BASIC ENCOURAGEMENT
Sadly, an entire system has directly and indirectly informed me, and so many others, that we don’t matter. . . .  I came to terms that I could never contact the police for any safety assistance – no matter what the situation. . . . The only way for victims to interpret this inaction is that we don’t matter. Our last names and familial lineage are not prominent enough to be considered worthy. Our lives aren’t important enough to warrant therapeutic jurisprudence.

In addition to being instructive on a personal level, Mary Louise’s statement highlights the social responsibilities of institutions to respond to abuse and trauma. When public and non-profit agencies that are supposed to help abuse victims don’t step up, when victims cannot obtain needed legal representation despite a surfeit of available attorneys, when the justice system fails them, and when media sources ignore their stories, that community has failed as a moral organism.

When Mary Louise posted her piece on Facebook, Dr. Maureen Duffy, a leading expert on workplace mobbing behaviors and trauma, left this comment for her, which I share with Maureen’s permission:

Mary Louise, this is a profoundly thoughtful, moving, and practical response to the question of what others can do to help victims. I appreciate the clarity and depth of your responses and that you took the time to put them together and publish them. Since a lot of my work is in the area of workplace mobbing, your account reminds us all again of the power of professional, workplace, and other kinds of social networks, both formal and informal. These networks can have a very dark side that is often ignored. Thanks for calling this form of abuse of power to our attention.

I wholeheartedly concur. And I’m guessing that readers who have experienced workplace abuse, only to find their employers and the legal system looking the other way or even complicit in the mistreatment, will find themselves nodding in agreement with many of Mary Louise’s observations and insights.

Therapeutic jurisprudence: Human dignity as a prime objective for law and public policy

(photo: Kathy Cerminara)

I just returned to Boston from a two-day workshop on therapeutic jurisprudence (TJ), hosted by Professor Carol Zeiner at the St. Thomas University School of Law in Miami. Like every other TJ gathering that I’ve been a part of, it was a compelling blend of thought-provoking ideas and information, matched by a wonderful sense of fellowship.

My talk was titled “TJ as a Framing Response to Anger, Shock & Trauma in Public Policy Making.” In addition to quickly surveying some of the disturbing developments in U.S. immigration and health care policy, I discussed the challenges of advocating for workplace anti-bullying legislation. The key message of my talk was that we must, without apology, frame debates about law reform and the making of legislation in terms of individual and collective dignity.

If you’d like a sampling of what TJ scholars and practitioners are working on, here’s the Day 1 agenda of our workshop:

And here’s the Day 2 agenda:

As some subscribers to this blog are aware, I am serving as board chair of the new, non-profit International Society for Therapeutic Jurisprudence (ISTJ). For many years, the TJ community existed as an informal, interdisciplinary network of scholars, practitioners, judges, and students. With the formation of the ISTJ, we are consolidating a variety of TJ initiatives and building a global organization for this growing community. Membership is open to all who share the goals of the ISTJ (not just lawyers!), with regular 2018 membership dues set at $25 USD and student memberships for free.

The new International Society for Therapeutic Jurisprudence is taking members!

I’m delighted to report that we have launched the website of the new International Society for Therapeutic Jurisprudence (ISTJ) and that we are now enrolling founding members for 2018! Much of the following is taken from the ISTJ website:

Co-founded in 1987 by law professors David Wexler and Bruce Winick, therapeutic jurisprudence (TJ) is an interdisciplinary field of philosophy and practice that examines the therapeutic and anti-therapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions. TJ values psychologically healthy outcomes in legal disputes and transactions, without claiming exclusivity in terms of policy objectives.

For many years, the therapeutic jurisprudence community has existed as an informal, growing global network of scholars, practitioners, judges, and students. With the formation of the ISTJ, we are now consolidating a variety of TJ initiatives and building an organizational framework for this community.

The ISTJ is a non-profit, tax-exempt, learned organization dedicated to advancing TJ by:

  • supporting legal and interdisciplinary scholarship;
  • identifying and promoting best professional and judicial practices;
  • sponsoring conferences, workshops, and seminars;
  • engaging in continuing professional education and public education activities;
  • and hosting and participating in print, electronic, social media platforms.

We spent much of 2017 assembling our founding board of trustees and global advisory council, drafting and filing our incorporation papers and application for tax-exempt status, and creating this website. The ISTJ held its founding meeting in July 2017, at the International Congress on Law and Mental Health in Prague, Czech Republic.

Membership is open to anyone who shares the general mission of therapeutic jurisprudence, not just lawyers and law professors! Our standard membership fee is only $25 USD, and currently enrolled students may join for free. Please click here to join us!

ISTJ Leadership

I’m privileged to be serving as the ISTJ’s first board chairperson, and we’ve assembled a wonderful board of trustees to help us get off the ground:

  • Astrid Birgden, Consultant Forensic Psychologist and Adjunct Clinical Associate Professor, Deakin University, Australia
  • Amy Campbell, Associate Professor of Law and Director, Institute for Health Law & Policy, University of Memphis Cecil C. Humphreys School of Law, Memphis, TN, USA
  • Kathy Cerminara, Professor of Law, Nova Southeastern University Shepard Broad College of Law, Fort Lauderdale, FL, USA
  • Heather Ellis Cucolo (ISTJ board director), Director, Online Mental Disability Law Program, New York Law School, New York, NY, USA; Principal, Mental Disability Law and Policy Associates
  • Martine Evans, Professor of Law and Criminology, Law Faculty, University of Reims, France
  • Shelley Kierstead (ISTJ board vice chair), Assistant Professor and Director, Legal Research and Writing Program, Osgoode Hall Law School, York University, Toronto, Canada
  • Michael Perlin, Professor of Law, Emeritus, New York Law School, New York, NY, USA; Principal, Mental Disability Law and Policy Associates 
  • Pauline Spencer, Magistrate Judge, Magistrates’ Court of Victoria, State of Victoria, Australia
  • Nigel Stobbs, Senior Lecturer, Faculty of Law, Queensland University of Technology, Brisbane, Australia
  • David Wexler, Professor of Law, University of Puerto Rico, San Juan, Puerto Rico, and Distinguished Research Professor of Law Emeritus, University of Arizona, USA
  • Michel Vols, Professor and Chair in Public Order Law, Faculty of Law, University of Groningen, The Netherlands
  • David Yamada (ISTJ board chair), Professor of Law and Director, New Workplace Institute, Suffolk University Law School, Boston, MA, USA

You can learn more about the ISTJ leadership, including members of our Global Advisory Council, here.

Personal note

I discovered the therapeutic jurisprudence movement roughly a decade ago. As my work concerning workplace bullying, mobbing, and abuse increasingly led me into different branches of psychology, I saw TJ as an ideal framework for what I was doing. Since then, my involvement in the TJ community has deepened considerably. In fact, the seeds of the ISTJ were planted during a 2015 workshop on therapeutic jurisprudence that I hosted in Boston. It took several years of meetings, discussions, and planning for things to come together, but we’re now excited about going public with this new organization.

When workplace predators silence and intimidate their targets

The ongoing revelations concerning sexual harassment and abuse allegations lodged against powerful Hollywood producer Harvey Weinstein took a major turn this week via some excellent investigative reporting by the New Yorker‘s Ronan Farrow. Here’s the lede:

In the fall of 2016, Harvey Weinstein set out to suppress allegations that he had sexually harassed or assaulted numerous women. He began to hire private security agencies to collect information on the women and the journalists trying to expose the allegations. According to dozens of pages of documents, and seven people directly involved in the effort, the firms that Weinstein hired included Kroll, which is one of the world’s largest corporate-intelligence companies, and Black Cube, an enterprise run largely by former officers of Mossad and other Israeli intelligence agencies.

The details are stunning. Here are just a few:

  • “Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan.”
  • “The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories.”
  • “In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court.”

The full article is lengthy (as a first-rate investigative piece usually will be), but it’s well worth reading to grasp the extent of these efforts to investigate and intimidate victims and reporters.

NBC’s Megyn Kelly, Kate Snow, and Cynthia McFadden on the fallout

Some of the fallout from these revelations is discussed in this 11-minute segment featuring Megyn Kelly’s interview with NBC correspondents Kate Snow and Cynthia McFadden. It is also worth your time. Among other things, Kelly takes aim at how women are often ridiculed and dismissed when they make claims of abusive behavior by powerful men, often to the point of being called crazy and paranoid.

Moral monsters in suits

As Farrow’s New Yorker piece explains, prominent attorney David Boies was a key point person in running Weinstein’s black ops against these women and reporters. It brings to mind a blog post I wrote in 2011 about bad employers and their lawyers:

I have no academic study to verify this, but I have concluded that many bad employers have a sixth sense for retaining thuggish employment lawyers who serve as their willing executioners of workers who file complaints about working conditions, blow the whistle on ethical and legal lapses, or attempt to organize a union.

Indeed, to keep their misdeeds from going public and to preclude being held accountable for their actions, folks like Weinstein often need lawyers who are willing to help them. I once again appeal to Hannah Arendt to help us understand this dynamic:

Philosopher Hannah Arendt invoked the phrase “banality of evil” to describe how Adolf Eichmann served as one of Hitler’s architects of the Holocaust. Since then, the phrase has come to represent — in more generic terms — how ordinary people become easily invested in the values of a morally bankrupt status quo and participate in terrible behaviors that seemingly are unthinkable in civilized society. These insights teach us a lot about how bureaucratic enablers of abusive bosses can help to facilitate the destruction of a bullying target. These professional handmaidens (usually HR folks and employment lawyers) are more than simple bystanders; rather, they are complicit in the abuse.

Attorney Boies had also been retained by the New York Times on various legal matters. Today, after learning that Boies had targeted their own reporters as part of this cloak and dagger campaign, the Times severed its ties with his law firm, stating:

“We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters….Such an operation is reprehensible.”

Been there, seen that

This aspect of the Weinstein saga may seem like an extreme anomaly. But for those of us who are closely familiar with other orchestrated attempts to further bully, silence, dismiss, marginalize, and disempower targets of interpersonal abuse, this is more validating than shocking. Unfortunately, money and influence can muster a lot of power to engage in further abuses, and this is simply a (now) very public manifestation of what continues to occur in so many other settings.

Infusing good core values into a new organization

With a beta version of the TJ Society’s forthcoming website, at the International Congress on Law and Mental Health, Prague, in July

Readers of recent entries are likely aware that I’ve been hip deep in helping to create a new, non-profit organization, the International Society for Therapeutic Jurisprudence (“TJ Society”). From the most recent draft of our by-laws, here is what the group is about:

Therapeutic jurisprudence (TJ) is an interdisciplinary field of philosophy and practice that examines the therapeutic and anti-therapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions. TJ values psychologically healthy outcomes in legal disputes and transactions, without claiming exclusivity in terms of policy objectives. The TJ Society shall advance these overall purposes by supporting legal and interdisciplinary scholarship; identifying and promoting best professional and judicial practices; sponsoring conferences, workshops, and seminars; engaging in continuing professional education and public education activities; and hosting and participating in print, electronic, social media platforms.

As I wrote earlier this month, I’m part of an all-volunteer board that is forming this organization, and I’m serving as its first chairperson. It’s a lot of work, but the broader purpose and the fellowship of a truly exceptional group of colleagues make it all worth it.

This also is an opportunity to put into practice many of the values that I have been advocating for via this blog. It means practicing inclusive, servant leadership dedicated to a cause greater than individual ambitions. It means treating others with respect and dignity. It means actually exhibiting transparency rather than simply touting it. It means avoiding unnecessary hierarchies. Above all, it means building a welcoming and difference making community. Fortunately, our board consists of individuals who walk this talk as a natural way of going about things. This is good: An organization devoted to psychologically healthy laws and legal systems should strive to operate in a psychologically healthy manner.

The TJ Society is a global organization, with a board and advisory council comprised of folks from around the world. This creates obvious communications challenges. It can mean maddening pile-ups of e-mails (many inflicted by yours truly) in attempting to work through topics that require group input, and very understandably patiences can grow weary among a group of very busy people. Additionally, available online meeting technologies such as Skype and Google hangout can’t change the scheduling realities of holding a board meeting with participants’ time zone differences ranging from six to fourteen hours! As I said, we’re fortunate to have such wonderful board members who can roll with the digital waves.

In terms of shaping my contributions to this fledgling learned society, I am fortunate to have other organizations and initiatives as role models. Over the years I have learned so much from the Human Dignity and Humiliation Studies network, especially the leadership of co-leaders Evelin Lindner and Linda Hartling. I’ve also been inspired by the inclusive culture of the biennial Work, Stress and Health conference, co-sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology. I’m further grateful for the biennial International Congress on Law and Mental Health sponsored by the International Academy of Law and Mental Health, which, among many other good things, allows therapeutic jurisprudence scholars and practitioners to gather and learn from each other. I hope that the TJ Society will draw from the best characteristics exhibited by these entities.

It’s too early to say whether the TJ Society will build into its culture the values that make for healthy, inclusive organizations, but I’m betting that it will happen. Embracing and practicing these values at the beginning is an important start. Yup, as we grow we’ll make some mistakes, juggle differences of opinion, and probably deal with conflicts here and there. But if the foundation is strong, we’ll do things in the right way much more often than not.

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