Washington Lawyer - May 2020 - 39

WORTH READING
Thomas hearings." Furthermore, Marcus thinks the Kavanaugh episode
reflects Trump's Washington, "a world in which norms of civility are
shredded, partisan battle lines hardened, and a win-at-any-cost mentality
prevailed."
All three books added very few specific facts that didn't come out at the
hearings (such as Ford's father later stating that he was glad Kavanaugh
was confirmed). The essential facts themselves are too familiar to repeat.
Both sides had impressive support, though only one could prevail. The
battle of partisans was cruel, while indecisive.
Kavanaugh had a résumé designed to claim his Supreme Court
appointment to replace Justice Anthony Kennedy, for whom he had
clerked. He'd lived a model life, too good to be completely true it
turned out. He had the academic credentials, important mentors,
powerful institutional associations. At the last minute, an old high
school acquaintance charged him with attempted rape, and all hell
broke loose. Both sides had cadres of advisors advising them on what
to say, how to say it, what to wear, when to be calm and when to be
irate, and what could be managed and controlled despite what would
torturously emerge. One prior Court nominee was disqualified for
smoking a joint in college. Was a brutish, drunken high school attack
by Kavanaugh also a good reason to not confirm? Was Kavanaugh
politically "too big to fail," and had advice and consent been replaced
by search and destroy, as Marcus asks?
There is an old tale about a shtetl rabbi whose small, unsophisticated
community in Eastern Europe looked to him for advice to resolve their
personal problems. A young married couple having marital issues came
to him to arbitrate. Couples therapy, we now call it. The rabbi first asked
the young wife about her complaint. She earnestly replied. The rabbi
responded, "I can see your points." Then he asked the young husband
his version of the dispute. He replied. The rabbi then said, "I can see your
points." The couple then exclaimed, "Rabbi, we both can't be right," and
the rabbi stated, "You are right."
Does the old rabbi's anecdote apply here? Could both sides be right, or
do competing wrongs never make a right? In this case, the Senate and
the White House were both discredited, and the country was ill-served
by what evolved as a partisan theater of consequences. Critics complained that even the FBI was misused by the government to close the
case and foreclose further investigation of some witnesses' alleged
damaging testimony.
Observers from both political camps can only hope for a different, more
fair Supreme Court appointment process in the future. One thing candidate Kavanaugh said that we can all agree with is that he is (or was?) an
optimist who lived "on the sunny side of the mountain, not the sunset
side. I see the day that is coming, not the day that is gone." Let that day
come soon!

The Challenging
Pursuit of Equality
Review by Richard Blaustein

lessy v. Ferguson, the 1896 U.S.
Supreme Court case that
upheld Louisiana's relegation
of black train passengers to
separate compartments, thereby
institutionalizing the "separate but
equal" doctrine, looms large in
Robert L. Tsai's engaging book Practical Equality: Forging
Justice in a Divided Nation. For Tsai, a law professor at
American University, Plessy is compelling because not
only did it undergird segregationist inequality for 60
years, but it also lends itself as a valuable learning tool
that transcends its time and circumstances.
To start, Tsai poses a question for Plessy as well as other past and present
equality challenges: "What is to be done to confront injustice when the
timing doesn't seem right or the odds appear stacked against you?"
To answer his own question, Tsai coherently articulates a system of fallback
approaches based on the tenets of fairness, reasonableness, anticruelty, and
free speech, which did work in many instructive Supreme Court decisions
Tsai discusses. He believes that these arguments are sturdy and compelling
for today's equality cases.
Tsai grounds his framework on American philosophical pragmatism's "holistic
approach to politics and law that is at once clarifying, action-directed, and
humanistic," and proceeds by offering a working definition
of equality - "individuals in similar circumstances ought to be treated the
same." He adds that "the whole point of equality law is to identify a major
breach in society's organizing rule, to punish wrongdoers, and to restore
a victim to her rightful place in civic society." Moreover, Tsai matches this practical approach to American constitutional law tenets, particularly the
powerful 14th Amendment prohibiting states from denying "any person
within its jurisdiction the equal protection of the laws." For Tsai, pragmatism is
a method in service of equality, the guiding light of American law.
Fairness, the first reasoning standard in Tsai's book, is propitious because
it appeals intuitively to different outlooks and is projected across the
American legal landscape, most eminently by the due process provisions
of the Fifth and 14th Amendments.

Ronald Goldfarb is a veteran Washington, D.C., attorney, author, and literary
agent who has reviewed books for Washington Lawyer for decades.

In Tsai's fairness discussion, Brown v. Mississippi (1936) and Papachristou
v. City of Jacksonville (1972) are especially illuminating. In Brown, the

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