by Sherry F. Colb
Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices. The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.
Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.
The first question is whether any or all of these claims are true. I do not know whether all of his female clerks looked like models. No one can know whether, if they did, this was "no accident," because one would have to peer into his mind. If they all looked like models, though, it seems unlikely to have been a coincidence. Meanwhile, Chua is in a bit of a "swearing contest" with students at Yale. For purposes of this discussion, however, let us assume that Kavanaugh has been hiring in the way he stands accused of hiring. What would be wrong with his doing that?
One possibility is that he hires beautiful women to clerk for him and then sexually harasses them. Perhaps he stares at their bodies, or comments on how green their eyes are, or asks them if they have seen pornography involving "Long Dong Silver". So far as I know, nothing like that has transpired. Although clerks are virtually always loyal to their judges, one would have expected at least an anonymous complaint of harassment if Kavanaugh did this sort of thing. It was apparently an open secret, by contrast, that Judge Alex Kozinski sexually harassed his clerks (but not so open that Kavanaugh--who clerked for and remained close with Kozinski--would admit to knowing it).
Thus, there is no reason to believe that Kavanaugh did anything harmful to his beautiful law clerks themselves. They enjoyed the benefits of a clerkship, including the precious mentoring that judges provide and the networks of powerful attorneys into which they would have gained entry.
These benefits, it should be said, were not exactly undeserved. Given the highly competitive application process, a "feeder" judge can hire clerks who are both beautiful and highly qualified. Still, by including looks as a criterion, a judge does harm some people--namely, the equally or even better qualified female applicants who do not measure up to his standards of beauty. Those less beautiful women would have suffered (at the hands of Kavanaugh and/or Chua or, if the charge is false, a hypothetical judge) because they lost something in virtue of lacking a characteristic that in no way bears on legal skill, ability to deal with litigants, or any other activity with which the judge might task them.
Why is that a problem? Consider the world of Mad Men. All of the male ad executives want stunningly beautiful secretaries, whether or not they intend to have sex with those secretaries. Some executives would look but not touch and behave in a perfectly appropriate manner. The secretaries might feel good, because the work is interesting or because the boss treats them respectfully. But when positions become vacant, homely women need not apply.
We might not think of this sort of discrimination against women who fail to live up to the beauty standard as sex discrimination at all. After all, a judge like Kavanaugh (again, assuming he did this) might hire more women than men, which suggests that if he is engaged in sex discrimination, it is against men rather than women. Yet in the 1989 case of Price Waterhouse v. Hopkins, the Supreme Court held that denying a female employee partnership on the basis, among other things, of her not wearing makeup or otherwise appearing "feminine" was unlawful sex discrimination. Compelling women but not men to conform to some ideal of femininity imposes a burden on the basis of sex.
Demanding femininity, of course, is somewhat different from demanding beauty, because any woman can act more femininely if she must, whereas most women cannot simply change their behavior and thereby become physically beautiful. This, however, seems to make beauty discrimination a worse form of sex discrimination rather than taking it out of the category of sex discrimination. Demanding feminine behavior is very oppressive but does not necessarily exclude any women from a job (though it might, in practice). By contrast, hiring only beautiful female clerks disqualifies many highly talented women from consideration.
What is the difference, though? Why should we care whether the large number of women who got to clerk for then-Judge Kavanaugh (not to mention the all-female group of law clerks working for him now) are beautiful? If he had hired all average-looking women instead--members of a group far larger than the group of model-like women--then most of the average-looking and highly qualified female applicants still would not have gotten the job, and the beautiful women that he did hire would not have gotten the job either. No matter what he did, many people would "lose." If he is in fact hiring more women than men, what is the problem?
The answer is both simple and complicated. The simple part is that by hiring only (or even mostly) gorgeous women, he is (again, if he does this) making beauty a qualification for the position when women apply. He is making it clear that he likes to look at beautiful women and finds it perhaps distasteful to interact much with women who are not beautiful. Women who know the truth--perhaps by hearing from Rubenfeld that Kavanaugh likes a certain look--come to feel that they are failed sex objects in a competition for a highly cerebral, intellectual job. That is a special kind of blow to a person's ego.
That leads us to the more complicated part. The reason that excluding a woman from a job because she is not pretty enough is so harmful is that it resonates with what happens to women on a daily basis. Pretty women have it easier in all sorts of ways. When I was a lot younger, I was pretty--though maybe not Kavanaugh-clerk pretty (again, assuming that's a thing). When I went somewhere to ask for help, men would smile and go out of their way to be helpful. When I walked around in shorts in Central Park, men would say hello and be friendly, picking up anything I might have dropped on the ground.
When I was looking for a summer job at age 20, with virtually no skills or qualifications, a (handsome) graduate student in the psychology department offered to recommend me for a non-advertised well-paid position conducting interviews for the Columbia Psychiatric Institute. I got the job, even though they had been looking for someone twice my age, because the grad student had said I was very mature (though he barely knew me and had no idea whether I was mature). The same grad student then called me a few nights later to see if I would go out with him. I said no, that I had a boyfriend, and he went on his way.
Is this just a gratuitous walk down memory lane? Perhaps, but my point is that many things came very easily to me because I was pretty. I did not view it as unjust at the time, because I felt that being pretty was like being smart, something you're born with and nonetheless get rewarded for. Men sometimes seem grateful to a pretty woman simply for being there, like a pleasant fragrance that makes everyone feel better. Pretty women can sometimes even leap over established hierarchy and tease men who would never tolerate that from either average-looking women or from men occupying the same rung of the ladder as the pretty women.
I do not mean to suggest that life is perfect for pretty women or that misogyny completely skips over them. The "incel" Isla Vista killer made a video in which he said that he was motivated to take revenge against pretty women, because, as a group, they had rejected his romantic overtures. Being beautiful can be dangerous, and there are times when being an invisible woman (because one is average-looking) is a blessing. But much of the time, average-looking women (and even moreso, less-than-average-looking women) absorb the continual message that they (we) lack something essential. And that is stigmatizing. Women come to view themselves as unattractive or worse; it can become part of their self-concept in a way that appears less common for men.
If I failed to get a job because I was not pretty enough, the stigma of that disqualification might make me reluctant to even complain about it. It is far easier to say "I wasn't hired because I was female" or "I wasn't hired because I was African American" than it is to say "I wasn't hired because I am physically unattractive and undesirable." As it happens, Title VII has generally been construed to permit appearance-based discrimination anyway. My point is that even if the courts or Congress were to change the law--and the law should be changed--there would remain social obstacles to the assertion of claims by "unattractive" people.
Meanwhile, if Judge-turned-Justice Kavanaugh or any other Article III judges or justices have in fact been selectively hiring beautiful women to clerk for them, they ought to cut it out.