Winners write the law – but that’s finally changing.

September 27, 2018

The testimony of Supreme Court Nominee Brett Kavanaugh and his first accuser, Christine Blasey Ford, started a few minutes ago and office email traffic has slowed to the vanishing point. With a few hours on my hands, I will write about another aspect of the controversy.  It’s not just memory and the different perspectives of a man and woman, but about how privilege remakes history.  The Nominee and I graduated from high school in the same year, 1982, and are both white males. We also both went to law school and passed the bar exam (I passed three in one week, but had a lot to prove). Nothing else seems similar.  He has thick, chestnut hair with just a touch of gray.  The little I have left is prematurely white, the legacy of changing professions, from classical musician to lawyer, and coming up the hard way through two Philadelphia law firms — White & Williams and Pepper Hamilton — that frequently ate their young.

Apparently the testimony will touch on Beach Week, a beer-soaked and time-honored tradition among graduates of elite private high schools in the Northeast.  It may be that pinning a young woman to a bed with the help of a friend after turning up the stereo loud enough to mask her screams was part of the light-hearted frivolity of Beach Week that we should come to accept and understand.  Or maybe not.  What I have heard so far about the Nominee suggests that he is a life-time member of the ruling class, those who move from success to domination, with no need to apologize for anything done along the way to those who no longer attract their attentions.  With accusations multiplying and surely millions of dollars spent defending the nomination to date, a person with a sense of proportionality and privacy would have retreated at this point, if nothing else for the sake of his young children who will hear all of it. But the ruling class are winners, and they don’t back down.

Returning to the opposites, I graduated from a public high school in the Southwest, Ponca City, Oklahoma to be exact, to which we had moved two years earlier, after my father lost his job at Allied Chemical in Morristown, New Jersey. In Ponca City, the closest thing to a beach was the swimming area of Kaw Lake, an enormous power-generating reservoir about 10 miles east of the city.  I had never seen a hydroelectric dam before, and the roar of water gushing down what must have been the equivalent height of a 30-story office tower made it impossible to audibly comment on the spectacle. The Kaw people, original inhabitants of the area, were also known as the Kansa (“People of the South Wind”) from which Kansas, 15 miles north, derives its name.  Spending a week after graduation on the barren shores of Kaw Lake (they weren’t kidding about the wind) did not occur to anyone, as there were no accommodations, and I recall only a single restroom building at the edge of the gravel parking lot, surrounded by tall grass.  But there was something that could have been called a beach night, after the Prom came to an end, when tradition called for Po-Hi seniors to spend the rest of the night and into the morning drinking the weak beer (3.2 percent alcohol) that Oklahoma allowed to those 18 and over.  It came in two varieties, Bud and Coors. I preferred the latter, as it was unavailable in New Jersey and therefore novel.

I did not attend post-Prom festivities (or the Prom itself) because despite receiving invitations from friends, I regarded Prom as an outdated and embarrassing display, something on the edge of extinction as the Cold War and much else about the world had become more serious since the decade turned and Ronald Reagan was elected President. Instead, I provided limited rescue services for Senior Nights 1981 and 1982, by driving out to Kaw Lake, locating some drunk fellow members of the high school Orchestra, and driving them safely home.  I must have responded to a call from a payphone out at the lake (back then one was duty bound to answer a ringing touchtone phone, despite no warning of who was trying to reach you), or perhaps I got a personal report from someone driving back to Ponca, since our rented house was at the very edge of Route 60 westbound, the only road back to town from the lake.  I do recall helping the fellow string player whose invitation I dodged into our powder blue Plymouth Fury (it had a textured white vinyl roof) and then driving close to the speed limit, to avoid the attentions of the dreaded “Hi-Po,” the Oklahoma Highway Patrol.  It did not occur to me to take a detour down one of the many dark dirt roads that crossed the prairie, to trouble a drunken female friend in the backseat.  My parents drank a lot, fought constantly and our family finances were perpetually shaken and stirred. But apparently they provided enough guidance that a plan like this never crossed my mind. The Nominee must have a different background.

The nature of our education and the manner in which success was rewarded mark other differences. I graduated third in the enormous Po-Hi class of 1982 (at the height of the oil boom, the town was flush with money and new arrivals), with a cumulative GPA of 3.97.  My mother, convinced I should have been first, attributed my ranking to a mistake in translating the straight-A grades from my Catholic high school in North Jersey.  At that point, however, I had spent time with graduates 1 and 2 in advanced classes, and knew they were smart and studious, born and raised in Ponca, deserving the honors.  I was grateful that the administration allowed a recent arrival to join the top three, plus slightly missing the 4.0 distinguished me from my civic minded peers, as it resulted from catching a B+ in Government, the one class I truly hated.  The idea of a representative democracy, where officials were elected on merit, pondered important issues and then acted for the common good, struck me as naïve legend. In classical music (I was already spending too much time pursuing it) there was no law — only practice, performance and recognition — which I knew even then was random and often fleeting.  It didn’t help that the American History II teacher at Po-Hi, Mr. Delbert Fair, was relentlessly critical of politicians, all of whom, he claimed, were prone to be “caught with their pants down.”  It was an embarrassing announcement in class, but based on what I understood about the 1979 demise of Nelson Rockefeller (former Vice President and four-term New York Governor, found dead [in bed] with his 27-year old assistant) the generalization rang true.

That summer did not include any further graduation celebrations, on what passed for a beach or otherwise.  Instead, I went off to music camp in Colorado, where I practiced constantly, and in return for playing cello on demand at the homes of local patrons of the arts, I received free room and board from mid-June until a week or so before college (it was actually music school) began.  I spent the next seven summers in this fashion, until I graduated from Juilliard in 1989 with a “master’s degree” in cello performance.  I was shocked even then that this blend of vocation, religion and obsessive compulsion could receive an academic designation.  The ranking of my summer quarters had increased, from Rocky Ridge Music Center, to three summers at the Aspen Festival (where I won the cello competition in 1986) to the Schleswig-Holstein Festival in 1988, where Leonard Bernstein conducted the orchestra during our tour of Soviet Russia.  But throughout, there were few grounds for optimism, and no sense that the future held a lot of promise.  Even then, it was no secret that our audience was shrinking, our relevance fading, and that there would be no way that I, unlike my last teacher at Juilliard, could move out to Los Angeles, rent a Hollywood bungalow, and make a good living in a recording studio before auditioning into the L.A. Philharmonic.  Much more was needed – money, connections, and increasingly the unspoken advantage – sex with someone in a position to advance your career.  I lacked the first two, and the third never happened.  Whether from principle or obliviousness, I don’t know. There was no graduation party after Juilliard either. The world around me, without a practice room in which to prepare for a career that would never happen, became an even more difficult place.

I don’t know if it was the sense of impending doom that was looming after conservatory graduation, the legacy of a basically moral upbringing, or the dormant memory of religion class, but I did not get involved in escapades of the sort that have been alleged against the Nominee.  As a reasonably attractive straight young man in the field that was filled with young women and many gay men, opportunities were ample.  But between serious girlfriends and short relationships, I can say with confidence that I never plied a woman with drink, held her down on a bed, muffled any cries, hit anyone, or invited a friend or two to participate in similar activity.  I had heard of this sort of thing happening at fraternities, and during the single year I spent on scholarship at the University of Southern California, I marveled at how good looking, tan, often blond and confident these young men were.  Based on my upbringing, I had assumed that the time of boundless opportunities in traditional occupations like doctor, lawyer and business entrepreneur were over.  These young men knew otherwise, and they were right.

At the time, I would not have thought for a moment to join them.  But through a combination of relentless circumstances (including early marriage to a Juilliard veteran who saw the handwriting on the wall, and a successful audition into an orchestra that promptly failed) I found myself a bewildered first year law student at Georgetown University in 1990, surrounded by well-spoken students whose overflowing confidence was disproportional to the fact that none of us knew anything practical about this field called Law.  I made myself raise my hand to answer questions in the large lectures, but could not match the polish of these students, who evidently loved Government class back in the day, and now could not stop talking about separation of powers.  My conservatory background (and habit of bringing my cello to class, since I had a surprising number of evening gigs in D.C.) was not well-received.  The consensus was that I must have been a loser in music school to switch careers in such a drastic fashion.  When I tried to explain to a skeptical Copyright professor that classical music was losing its relevance while becoming the preserve of the well-funded (able to afford practice teachers and old Italian instruments), he dismissed me as “cynical,” and gave me a B in a class where I had never worked harder, or with more enthusiasm because the subject matter (artistic works) was something I knew about.

A similar pattern played out in job interviews after my second and third year. I had many interviews and a good number of callbacks, but invariably, there was a partner who was skeptical or threatened.  On the one hand, I could not possibly be a hard worker since the belief was that musicians are talented flower children without discipline. On the other, I was an elitist who didn’t have the sense to stop practicing, who didn’t know what to say when the hiring partner proudly recalled seeing Led Zeppelin at Shea Stadium in 1975.  Strangely, my background as a classical musician who was not ready to renounce what he did but saw the problems with it led to a form of discrimination that I could not explain or complain about.  On the surface, based on gender and skin color, I appeared to be another recipient of white privilege.  But it wasn’t happening.

Meanwhile, the well-spoken students who could hold forth on the abstention doctrine and delivered what the professors wanted to hear got jobs, and with the jobs came new cars and suits, a better apartment, a pay scale as a first year associate that I never known any orchestral musician, no matter how long they had been in the musician’s union, to attain.  There is no doubt that the Nominee was among these winners, and the outcomes made sense for all participants.  There would be no reason for a law firm to hire the unknown quantity of a still-serious musician, when they could bring on someone without those complications, who came from a shared background, and could be depended on to do and say things that were “appropriate,” consistent with firm expectations.  Diversity based on appearances was emerging, but diversity based on a different mindset, gained in a vastly different professional setting, was still far in the future, if it has even yet arrived to law schools and the law firms that hire from them.

I eventually found my footing in law, but at a tremendous price: Year upon year of billable hour targets that could not be honestly reached, ruined family holidays, inability to sleep while pondering what it was that made this or that partner so dedicated to my destruction.  It is likely that I have conducted more depositions, held my own in more legal arguments, and probably defended more jury trials than the Nominee.  The stacks of motions, briefs and correspondence I typed at each law firm long ago passed the 10,000 mark, that magic number where one becomes adept at a chosen skill under almost any circumstances.  I have learned an entirely new craft over the past 25 years, but political progress in the law firms where I spent most of that time was elusive at best, a humiliating failure at worst.  In this area of the law, the Nominee is far my superior, in part because his pattern of winning, set at a young age, was never unraveled.

From what I have seen, a person who is the regular recipient of societal reinforcement and reward, from high school into college, and then from law school into a law firm, will tend to conform past acts into a seamless narrative of triumphant success.  The United States did this on a grand scale after it achieved the status of global decision maker after the First World War.  From that perspective, history was adjusted, with all events (from colonization, to the War of Independence, the Civil War, widespread child labor and “Indian Removal”) made part of a winner’s narrative, resulting in a place that could only be called (as I heard this past weekend from a get out the vote activist) “the best country in the world.”  Losers have regrets, but the Best Country in the World (with The Best Legal System in the World) would have no need to consider the past and wonder if it could have been done differently.  Perhaps this is what drives the stark disconnect between the testimony provided today by the first accuser, and the Nominee’s staunch and sincere-sounding insistence that none of it ever happened.  Rape, attempted or actual (one of the original Common Law felonies) would be such a departure from the Nominee’s success narrative that it could not have happened, and therefore has all but disappeared from memory.  The lure of the High Court, for a lifetime winner, finished the job of rewriting history.

Richard Maurer

Admitted to practice law in Pennsylvania, New York and New Jersey