Rep. Brandon Gill (R-TX), a rising star in the GOP and MAGA movement, grilled American Bar Association President Michelle A. Behnke during a hearing before the House Oversight Committee Task Force on Defending Constitutional Rights and Exposing Constitutional Abuses that was examining the ABA’s part in law school accreditation.
Republicans made the case that the organization has used its accreditation authority to push race-conscious diversity, equity, and inclusion policies throughout the legal profession. Gill, the chairman for the task force, has accused the ABA of using its accreditation power to apply pressure to law schools into adopting race-conscious admission policies and mandatory DEI-related coursework.
A viral video clip of one exchange between Gill and Behnke starts off with the congressman asking Behnke about the number of transgender Supreme Court Justices the U.S. has had in its history. “How many Supreme Court justices have we had in American history?” Gill asks her. “I could not tell you,” she replied. “About 116. Do you know, of those 116, how many of them have been transgender?” he continues.
Again, Behnke says she has no clue. The Texas Republican asks her if she thinks any of the justices in history were transgender. “I honestly have no idea,” the ABA president answers. “You don’t know?” Gill presses. She reiterates her previous answer. “You study the law, don’t you?” She responds, “We do not study the personal attributes of individual justices.”
He asks the question again and gets the same answer. “You have no idea. Well, I think most people can assume that there haven’t been any transgender Supreme Court justices. I hope that we can agree at least on that basis. Would that be okay to proceed under that assumption? Okay, I appreciate that. So transgenders haven’t been represented on the Supreme Court. Do you think that it’s important that the next Supreme Court justice be transgender?”
Behnke replies, “The ABA does not subscribe to any particular quotas.” Gill interjects, saying, “I’m not asking about a quota. I’m asking about representation, diversity, equity, and inclusion.” She answers, “ABA supports diversity in all of its forms.” He follows up by asking her if transgenders have been included on the U.S. Supreme Court.
The ABA president again tries to tap dance around the question by giving a generic answer, telling Gill, “The ABA supports the full spectrum of –” but the Texas congressman does not allow her to skate by, interjecting by asking Behnke if she thinks it’s a problem that the U.S. has never had a transgender justice. She again answers with generalities, saying, “ABA believes in diversity, equity, and inclusion.”
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“I’m asking you about inclusion of the transgender community,” Gill fires back. “We believe that people ought to bring their entire self to whatever role they’re serving,” Behnke responds. “You’re refusing to answer my question. Do you think that it’s important that we have a transgender Supreme Court justice?” She still tries to avoid providing a direct answer, saying, “I believe that it is always important. The ABA believes that it is always important to support and encourage diversity.”
“So we should have a transgender Supreme Court justice?” Gill asks again. “Diversity has many forms and we believe that –” Gill interjects and accuses Behnke of not answering his questions in a straightforward manner. He then asks her, “Do you think that’s because of your own implicit bias?” She says, “I believe that I’m trying to explain that the ABA does not set quotas and does not believe –”
“Do you have implicit transphobia?” Gill asks the ABA president, interrupting her extremely canned answer. “The ABA believes that diversity in all of its forms is important and helps the profession more globally,” she said. “Okay,” Gill says, adding, “we’re going to move on. Should Americans be judged by the color of their skin or the content of their character?”
“Discrimination is never appropriate, sir,” she replies. “So, do you agree that Americans should be judged by the content of their character and not by the color of their skin?” She finally gives a straight answer, saying, “Yes, I would agree.” He follows up with another question, asking, “You agree with that? Should a law school consider an applicant’s race when making admissions decisions?”
“The Supreme Court has indicated that –” Gill interjects and says, “I’m asking you if they should. It’s a normative question.” She once again says, “Discrimination is never appropriate.” He then says, “So it is your testimony that law schools should not consider applicants’ race when making admission decisions?” Behnke replies, “The Supreme Court has said that you may not take race into account.”
“So you don’t believe that race should have any role, yes or no, in a law school’s admissions decisions. Is that the position of the ABA?” Gill asked point blank. “ABA is not responsible for admissions,” she says. “I didn’t say it was. I’m asking if you believe and if it’s the position of the ABA that race should not be a factor at all in a law school’s admission decisions,” he says.
Behnke said that the ABA takes compliance with the law seriously. “I didn’t ask you that. I asked — it’s a really simple question. I’m asking you: Let me just ask you, in your own personal capacity, should race be a factor in law school admissions decisions? The question is a yes or no question.” Behnke continues to try and navigate around the question, but Gill holds her feet to the fire, pushing for her to be direct.
He then hammers the ABA for their position on the matter, saying, “The ABA has said explicitly that they have a long history of supporting consideration of race in law school admissions. Is that your testimony that law schools should continue taking into account race?” She replies, “The Supreme Court indicated that diversity is a laudable goal and the ABA supports diversity in the goal.” Gill concludes the skewering by saying, “This is embarrassing for you. You ought to be able to answer this in a very straightforward way. And with that, the time is up.”
Featured Image: screenshot from embedded video