 We're going to have a very, very interesting hour or so now with Shane Inspector, who's over here now. He is a Clare College person, an alum person. He hails from Philadelphia. He's an expert on catastrophe litigation. So whenever there's a catastrophe, you just think, Shane him. And he's going to talk about, actually he's not going to be talking about that. There are no doubt that when we get to some question time, if you would like to ask about that, I'm sure you'd be very too pleased to discuss it. But he's going to be talking about the judicial process and the appointment of judges to the Supreme Court and the politics associated with that process. He's from Philadelphia, but he's done a lot of law teaching at the University of Pennsylvania, Hastings College at Berkeley, and also at Stanford. And I think that we're going to be in for a real treat. There will be time for some questions afterwards. Well, let's hear what you have to say, Shane. Well, first of all, thank you, Tony, very much for having me here this evening. And thank you to all of you. This is a wonderfully special place for me. For those of you who are graduates, you know exactly what I'm talking about. And for those of you who have not yet graduated, if you don't know it by now, you will come to learn it. There's nothing in my life that has ever come near my year at Clare College, below those many years ago. I learned how to drink sherry and port in the NCR right upstairs here to the great disservice of my waistline. But it's just such a special place. And I'm very much indebted to Tony and to Neil for your many kindnesses to me over the years and for the opportunity to make a contribution to this great college. I'm not talking just a financial contribution, but a contribution that's academic. I've come to teach at Neil's classes many times over the years, and I so treasure my relationships with Clare College students. And whatever opportunity I have to be able to make a contribution to you, I would like to undertake that, whether it's some advice on obtaining a job in the U.S. or achieving professional satisfaction, or how to approach the practice of law, or how to approach a mixed career of teaching and practice, which is where my life is now delighted to be able to give that information to you if you'd like either later this evening or beyond tonight. So Tony asked me to speak on the Supreme Court confirmation process. I wonder if I could ask for a show of hands as to how many of you feel that you followed reasonably closely the Supreme Court confirmation process of now Justice Cowanall. That's probably a little more than half. So many of you, even if you did not follow it, found the process to have been extraordinarily painful. That's quite more than half. So I confess that when I was asked to give this talk tonight, I found the request to be painful. And I found saying yes to be painful. And I will also confess to you that even talking about it to you now, thinking about talking to you now, I find it to be painful. But my pain in this area goes back 27 years to a nearly identical confirmation process. And that was the process of the confirmation of now Justice Clarence Thomas. How many of you know something about that? A minority of you know something about that. Well, remarkably it was almost absolutely identical to what just happened with the Cavanaugh hearings. The hearings in the main had closed regarding a sitting judge on the DC circuit, a staffer on the Democratic side, not that the party matters because it doesn't, leaked the identity of a female complainant regarding the personal sexual conduct of the nominee, a maelstrom ensued as to what to do, the additional hearing was held, which was watched with captivation by a national television audience. The complainant was highly credible and composed. The nominee was indignant and strident in his response. The panel of senators was largely embarrassed, essentially no minds were changed, no votes were changed, and the nominee was narrowly confirmed. All those facts are common to both confirmation proceedings. It was extraordinarily painful for me and the pain still resonates within me because my father was a member of the Senate Judiciary Committee in 1991 during the Hill Thomas hearings. He didn't have the benefit of a similar set of hearings 27 years earlier to learn the lessons from. Nothing like that had ever happened in the United States Senate. I didn't know, as I was watching this, exactly what I was watching, or what it was going to mean within my family, within Pennsylvania, in relation to the electoral process for my father, who was to face the voters the next year, what it would mean for America, what the concept of sexual harassment, because that was a sexual harassment case, not a sexual assault case, but there was significant overlap, what that was going to mean for America. None of us knew. We were all, largely, most of us, I should say, not everyone, but most of us were horribly uneducated to what we were experiencing and what it would mean for this country, for my country. So, let me take you backward if I may and provide some context for you. Of course, the Senate Judiciary Committee is a committee of the whole of the United States Senate. There were 14 members. Clarence Thomas was a barely qualified nominee for the Supreme Court. He was chosen significantly because of his race. He was replacing an African American justice, and there was a strong feeling in the United States of the need to replace Thurgood Marshall with an African American that was right beneath the surface of the discussion, but it was there. Thomas was qualified, but barely. He had served in the Department of Education. He served on the Equal Employment Opportunity Commission. He had served for a brief time as a judge on the D.C. Circuit Court of Appeals, which, as many of you know, was a very high court, but he had been there for only a very brief time. He was dominated by President George H.W. Bush to the U.S. Supreme Court in the summer of 1991. He was given mixed reviews by the various folks that assessed nominees. He was given a qualified recommendation by the American Bar Association on a split vote, again highly unusual. As things were developing in the hearings, it looked as if Thomas would be confirmed, but barely. The Republicans had a bare majority in the Senate, and it looked like there would be a largely party-line vote. Does it sound familiar to you? And when the hearings came to an end shortly thereafter, I mean within a couple of days, there came this word that there was a woman named Anita Hill, also a professor, who was alleging that Thomas had sexually harassed her. The nature of the sexual harassment was alleged to be suggestive language in the workplace, discussion of Thomas' anatomy and of pornography and the matters of that nature that were unwelcome and that created a hospital work environment. Professor Hill had not authorized the release of her allegations. She had made them quietly to the Senate Democratic Committee staff. She had said she did not want to become public, that she hoped the matter could be resolved without her becoming a matter of public discussion. Again, does this sound familiar? Of course the matter could not be resolved and Thomas would not quietly withdraw. And then a member of the Senate Democratic staff on the Senate Judiciary Committee leaked the name and the allegations of Professor Hill to the news media. Again, does that sound familiar? And with her name made public, it was inevitable that she would feel the need to essentially clear her name because now her name was being associated with these allegations, but she was silent. She determined not to remain silent and she came to Washington and she appeared at a hearing that occurred on the second Saturday in October of 1991. I've never spoken to a group about these hearings. As I said to you before, it is very painful for me. My father was the most moderate, as in non-conservative member of the Republican side of the Senate Judiciary Committee. He was the only person who could be thought of among the Republicans as a true swing vote. Four years earlier he had voted against the nomination of Judge Robert Bork for the US Supreme Court. One of the few Republicans to do so and his vote against Judge Bork and his questioning of Judge Bork had sunk the nomination of Judge Bork. So he was viewed as having an unusual degree of credibility among the Republicans. So it was he who was asked by the senior Republicans on the committee to be the person to question Professor Hill. That was a request that he felt not only bound to say yes to, but that he was happy to say yes to. He had been a prosecutor. He was a trained investigator. He was a trained questioner. He was a trained trial attorney. He had been in the Senate for 11 years. He questioned many witnesses. And he certainly felt himself to be well-equipped to question Professor Hill. And that's what he did. And I watched the hearings on television and my impression was here is a skilled attorney asking questions in a non-judgmental way and getting answers from a very skilled witness that's not meant in any way to be derogatory of Professor Hill. When I say skilled, I mean intelligent, well-educated, Yale Law School, a professor of law, someone who knew how to answer a question, someone who was reasonably comfortable under these extremely stressful circumstances, as was Professor Blasey Ford 27 years later. And what I failed to appreciate and what my father failed to appreciate when he was questioning Professor Hill is that his questions were seen by a large percentage of Americans, mostly women, but not all women, some men as well, as being unfair and that to question a victim or alleged victim of sexual harassment was itself improper. And many Americans, again mostly women, but not all, felt that when he was questioning her that they were being questioned because they had been victimized by incidents of sexual harassment. And I think that my father, in retrospect, felt that he was tone deaf to that circumstance and that his questions, especially magnifying television, would not be seen for what he felt they were, which was an effort to get at the truth of what had occurred. There were questions by other members of the Senate. Then judge, now Justice Thomas testified after Professor Hill. He was very angry. Again, does that sound familiar? And the hearings closed with controversy about why other witnesses were not called. Again, that sounds familiar. And the hearings concluded. When the hearings concluded, there was public opinion polling nationally at the performance of the senators. And 60% of the American public approved of my father's questioning of Professor Hill and about 20% disapproved of it. And I thought that seemed to be about right. And then I saw, and we all saw, this remarkable transformation of public opinion led by our national news media who was almost uniformly aghast number one at the nomination of Judge Thomas and number two at his confirmation and who felt very much akin to Professor Hill and her allegations. And the public opinion polling eventually turned against members of the Senate, including my father, such that his approval in terms of his handling of the Hill Thomas hearings went from about 60-20 to about 35-45. In Pennsylvania, where he was a member of the United States Senate, he lost 5% of his favorable rating, which had been at about 60%, down to about 55% in the weeks after the hearings. Again, as a product of this sort of developing public maelstrom over the hearings. I was very involved in all of his campaigns for public office. I was characterized as his closest adviser. And I was very concerned about the effect of this on his reelection. And I saw in communities that were his closest supporters, the sort of moderate and even liberal communities in Philadelphia suburbs, as an example, just absolute horror at his perceived conduct in relation to these hearings. And I saw him really be shocked at how others reacted to the hearings and how he comported himself. He said thereafter that he did not appreciate the feelings of the American public about sexual harassment before the hearings and that the hearings had been a learning experience for him, which, of course, they were. He was asked many times if he would apologize for his questioning of Professor Hill. And he said that he would not, that he felt he had nothing to apologize for. And he invited many times I heard him say to people who would be very vocal about his questioning. He would say to them, I'm going to come to my office, bring the tapes of the hearings, show me where I asked an inappropriate question or a question in an inappropriate way. But that was an insufficient defense for him to articulate to the great mass of Pennsylvania's who were unhappy with him. That's not to say that there were the Pennsylvania's who were not happy with him because there were quite a few who were. They tended to be people who were in favor of Judge Thomas to begin with. And the people who were unhappy were the people who tended to be against Judge Thomas to begin with. This was very much outcome determinants. If your approval of the senators in the confirmation hearings turned around whether you thought Thomas should be confirmed or not. As it worked out in the campaign, he held a series of open house town meetings across Pennsylvania, particularly in neighborhoods where the kinds of voters that I've described were concentrated. The hearings caused a new candidate to run against him. A woman whose campaign was articulated as a response to the Hill Thomas hearings. And the re-election campaign was a very, very close election, much closer than it would have been otherwise. He was re-elected. But it was certainly a searing experience. Searing, searing for him, searing for me. Particularly given his background as a moderate, as someone who had been very aligned with women's causes and women's interests. So then we fast forward to the Blaseyford Cavanaugh hearings. And I don't need to spend as much time on that, I think with you, as I have on the Hill Thomas hearings because most of you know what happened there. The hearings had closed as the Cavanaugh. This allegation had been excellent since August of this year. It had not been shared with Senator Grassley, who was the chairman of the committee. Senator Feinstein was aware of it because she had been told about it by a member of the House. The identity of Professor Blaseyford was leaked by a Senate Democratic staffer. It is a fact of life in America, like in Britain, that the news media doesn't investigate itself. So who was the leaker is something that will doubtlessly never know. The media can't survive, frankly, without people who leak information. Those of us who are interested in a robust debate I think have to accept the reality of leaks as a part of the process and I'm not condemning that in any manner, but that is what happened. There was a leak of her name and she then felt put upon just as Professor Hill felt put upon and you may recall the circumstance where she wasn't sure if she would come and she was concerned about her security and when they come to California and an interview were there and then of course she was compelling. She was compelling and I'm not undertaking a value judgment on whether she was right or wrong and I haven't said that either as Professor Hill or Judge Thomas. I'm not here to talk about my personal view in that regard. But she was compelling and for those of you who don't remember or didn't see Judge Kavanaugh was extraordinarily striding in his reply. Much more so than was Judge Thomas. Many people in the United States felt that Judge Kavanaugh was well qualified to be elevated to the U.S. Supreme Court by virtue of his background of his education and his training and his experience. He had served in the White House he had been a long time member of the U.C. Circuit Court of Appeals. Yes, he was a conservative but that's the reality of elections. The conservative is elected president that they're going to nominate conservative nominees for the court and if a liberal is elected president they'll have liberal nominees and that to the victor goes the spoils within limits so long as they're qualified. That's why we have an advice and consent function in our constitution. The Senate has to confirm the president sends over a new nominee but the president's selection is given significant deference. So Judge Kavanaugh as I mentioned was indeed very strident and there were many Americans who felt that while Judge Kavanaugh was qualified to be elevated to the U.S. Supreme Court and some who also felt that that they could not make a determination of disqualification based solely upon Professor Blasey Ford's testimony. There are many Americans who felt that Judge Kavanaugh's demeanor was so far outside the mainstream as to disqualify him for confirmation. I confess that I've never seen anyone at that way in a congressional hearing. I've never seen anyone at that way on television at least not in what perforates of the nonfiction. But what happened? What happened? Judge Kavanaugh was confirmed. The reality is is that virtually no minds were changed. No minds were changed in the United States Senate and virtually no minds were changed in the public. For those of you who care about this issue, it doesn't turn out many of you do, I would respectfully ask you to look into your own mind and your own heart when you're considering this issue and ask yourself whether you had any different view about Judge Kavanaugh's qualification for the U.S. Supreme Court after the hearings as before the hearings. What I really mean by that is if you were going to vote no on Judge Kavanaugh before the Blasey Ford-Kavanaugh hearings, was your mind changed a yes? And if you would have voted yes was your mind changed to no? I think there are many, many people who were very unhappy with his performance but they almost exclusively tend to be people who were already against his nomination and he ended up being confirmed and of course as you know we're nearly the closest of those. So where is America on this? What's the lesson to be learned from this? I would love to tell you that there's something curative that I could point to that we could say we could derive meaning here. I think the truth of the matter is that when we deal with an issue of sexual assault or sexual harassment these are the most sensitive of issues that exist in our society. I teach evidence at American law schools. I have a class on the rules of evidence as applied in sexual abuse cases. Every year when I teach that class I prepare with extra care and extra concern about the classroom discussion. Every year I give a five minute talk before we begin the class where I talk about the necessity to be sensitive to each other that many of us ourselves have been victims of sexual harassment or sexual assault and if not victims ourselves someone close to us has been and we feel especially sensitively about these issues and there are others who have other views on these matters whose views must be respected within the classroom setting. That's an abbreviation of the talk and by the way I give it that I've composed and I don't want to get a single word wrong because that's how concerned I am about this subject in my classroom with my students and that's the reality of this subject in American life and it can't be any different in the United Kingdom. People are people and these issues are the most intense as well as they should be. I know how much progress we can hope to make through hearings like this I know in America that Hill Thomas hearings were an eye-opener for a lot of Americans including my father who had an inadequate appreciation of how many Americans felt victimized by sexual harassment. But that was only a first step and it did not prevent horrific nature of the hearings that we saw this fall. I think a second matter that I would comment on in terms of trying to find some place for improvement is a greater degree of responsibility from the Senate and I would particularly point to Senator Feinstein who has otherwise been a distinguished member of the United States Senate for a very long time. But she got this letter from Professor Blasey Ford which had been sent originally to Ford's member of Congress and it was shared with permission with Senator Feinstein. Senator Feinstein had an obligation to take that letter and if she felt the need to redact the name of the senator she could do that to the chairman of the Senate Judiciary Committee, Senator Grassley and say to him that she was the ranking member she was the most senior Democrat on the committee she had an obligation to take that letter to him either redacted or unredacted and if unredacted with permission of Professor Blasey Ford and to say to him Senator Grassley we have a problem we have a complaint against Judge Kavanaugh it has specificity it's a very serious in nature and let's talk together about what we're going to do about this and then it would have been up to Senator Grassley to reach out for Professor Blasey Ford and in a bipartisan way to ask her to come in and give testimony and to do so in a way that would be comfortable for her but hopefully would be public because of the extreme public interest in the issue and it does not cover her with glory that she did not do that she should have done that no members of the Senate were covered with glory in 2018 in these hearings no members of the Senate were covered with glory in 1991 in these hearings as a questioner of Professor Hill directly led to the Senate's abdication of their role as questioner of Professor Blasey Ford you saw they brought in a prosecutor from Tucson, Arizona to engage in questioning of Professor Blasey Ford why? because none of them wanted to have the stain on their careers that my father had on his career from questioning Professor Hill they all knew what my father went through in the aftermath of those hearings and none of them wanted that for themselves so the prosecutor was brought into question for those of us who are interested in trial technique or questioning technique or investigative undertakings it's obvious that you cannot develop a line of questioning in 5 minute intervals which is what occurred here she was given 5 minutes most of the Democratic senators opted to bloviate instead of ask questions when they were finished with their 5 minutes of their time the matter went back to the prosecutor from Tucson 5 minutes more about the Democratic side it was a thoroughly un-useful un-useful process in terms of actually getting at the truth it was not a search for truth it was a political exercise if I were to be slightly complementary to the process of 1991 at least there was questioning and an effort by the senators to develop the facts as it worked out it was tone deaf to the feelings of many in the public about these matters and that's as I say the answer to be essentially this application of central responsibility in 2018 so I think if we were to take another lesson from this and that is there needs to be a prompt investigation in a bipartisan way which there was not that could have been avoided number 2 there should be real questioning developed by the senators with real time and if the senators are not going to ask the questions and by the way they don't have to then bring in lawyers on both sides to ask the questions but give them an hour or a piece and then an hour there and then come back for an hour more and take as much time as you need within a reason to get everything out on the table if you're going to have a hearing you need to have a hearing and there was not a hearing so that would be a second takeaway it's not that I'm optimistic about that occurring because what occurred was so bad it could have been so much better given the lessons of 1991 to be a second potential takeaway and the third takeaway if I may is I think we have to undertake a stark recognition as as adults that the senate is not a place that is amenable to a frank discussion of topics that are as serious as an accusation of sexual harassment or sexual assault the senators regrettably are motivated by political considerations by party affiliation by reelection and that doubtlessly colors if not overwhelms their judgment on these issues it's such a regrettable thing for me to say particularly as an American speaking to a British audience but that's the reality of things and I wish it weren't so but the reality is that the exercise was an exercise in power the Republicans controlled the senate and this is not meant as a statement of party because if the Democrats controlled the senate I think the opposite would have occurred their nominee would have been confirmed the fact that so few minds were changed in either confirmation or proceeding either in the public or among the senate I think tells us that these matters are largely outcome driven in the minds of many of us and I hope that we can try to separate our feelings about these kinds of accusations and they are very serious from the feelings that we have about who should sit on the supreme court it's very difficult I think for many of us I include myself in that category to do that but I do believe that we need to be rigorous in how we approach these issues Cavanaugh could have been qualified on paper and by training and by experience but had been disqualified by a virtue of committing a sexual assault there aren't many people who feel that way you know there just aren't most people who felt he was qualified that either did not believe Professor Blasey Ford weren't convinced or didn't think it was enough to keep him off the court on the other hand Professor Blasey Ford could be disbelieved but a person could believe that Judge Cavanaugh was not qualified to sit on the court by virtue of background training and experience not a lot of people felt on that category either and I think that there is an object lesson in that for us about our willingness to rigorously separate those issues so with that I know I'm the only person sitting between you and the bar so I'd be happy to take a few questions and then we'll have a lesson sharing