Not About Bread: Race Matters in Brett Kavanaugh Fracas

Tale of Two Young Guys

Two young men, two similar acts of misconduct, two very different life trajectories.

Young man #1: We all know about privileged, smart, savvy Brett Kavanaugh, whose high school and college “antics” are being called alleged acts or something along the lines of youthful indiscretions that should not bring down someone who has otherwise led an exemplary life. But what allowed Kavanaugh to lead that life was a culture of white privilege that permitted room for and ignored common indiscretions of drinking, though it could have been of marijuana or cocaine use, and abuse of acquaintances and fellow students.

Young man #2: Warren White is a former client of mine, my first when I got out of law school. I defended him on appeal following his conviction for a crime that took place in 1983. I have no idea where he is now, but I suspect that he is unlikely to ever be nominated for a prominent position in the federal government and I also suspect that his behavior – if you believe, based on the scant and tainted eyewitness evidence, that he was the perpetrator – will ever be considered a youthful indiscretion. White was an African American young man from Coney Island, a neighborhood in Brooklyn, which was pretty much the opposite of Chevy Chase in the early 80s. White did not have anything like an elite private school education and he came from a family that tragic violence had struck just a few years before with the murder of his sister.

White was basically convicted of mugging a young woman at a subway station, having pulled her from behind up the stairs, and then, when the train was heard approaching the station, he ran with her purse. Though the appellate decision did not mention the fact, there was also testimony about improper, sexual, touching during the very brief incident. I won a reversal of the conviction because it was based on an illegal stop and arrest. (See People v. White, 117 A.D.2d 127, 503 N.Y.S.2d 59 (2d Dept. 1986). With no bystanders as witnesses and no previous acquaintance with the female victim, today any defense attorney worth his or her salt would insist on challenging such a flimsy and possibly tainted eyewitness identification. Before I won the case, White had been convicted following a plea of guilty and he was living in jail at a New York State correctional facility. Think Orange is the New Black, but with guys from rough neighborhoods.

Instead of being considered a mistake of youth (again, if one can even credit such a conviction), White’s permanent record includes an arrest and a felony. If I recall correctly, after our success on appeal, he pled guilty and was sentenced to time served. The incident that ruined my client’s future took about as much time as Kavanaugh’s alleged “horseplay” at a house party, yet no one will ever spend hours of investigation to prove that this one felony conviction was unconstitutional, otherwise illegal, and unfair. No one will ever ignore this felony conviction when White is filling out a form in the hopes of getting a job.

Unlike Kavanaugh, who walked away drunk and free from the house party, my former client was arrested and urged to plead guilty to get a much better deal than if he held his breath and insisted on going to trial. My client faced the discriminatory bias of the 1980s – and now – against young African American men, so he probably wisely decided against challenging the charge at trial. While Kavanaugh sat with his parents to make the choice to attend Yale and perhaps receiving a parental lecture or a passing wink about how to behave at parties or during beach week, my client was forced to decide between contesting an unfair felony charge and taking a deal that would mark him for life as a felon.

When we consider giving Kavanaugh a free pass for the antics of his youth, let us not forget that there are thousands like Warren White who might not even have been guilty and yet they are made to pay for their alleged youthful errors for their entire adult lives. These are the young men whose appeals and habeas corpus petitions arising out of criminal convictions that Brett Kavanaugh will be judging, whose lives will be significantly affected, if Kavanaugh reaches the United States Supreme Court. Will Kavanaugh be mindful of his good luck and privilege when he ponders the lives of those like White?  Will he reconsider constitutional interpretations that have perpetuated the divide between the privilege of Chevy Chase and the hard luck of Coney Island? Even the fact that Kavanaugh might have that opportunity, while someone like White never will, says everything about the work we as a nation still have ahead of us.