E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Some 1700 law professors have written a brief letter (posted at The New York Times) stating that during his September 27 appearance before
the Senate Judiciary Committee Brett Kavanaugh “displayed a lack of judicial
temperament” in a way “disqualifying for any court, and certainly for elevation
to the highest court of this land.” The letter contends that at the hearing Kavanaugh
“exhibited a lack of commitment to judicious inquiry” and that “instead of being
open to the necessary search for accuracy” he “was repeatedly aggressive with
questioners” and “[e]ven in his prepared remarks . . . described the hearing as
partisan.” The professors conclude: “we are united . . . in believing that he
did not display the impartiality and judicial temperament requisite to sit on
the highest court of our land.”
People can write, sign, and send whatever they like, I
suppose. As for me, I have a general aversion to these sorts of mass-signed
letters. As I see things, the more people who sign these kinds of letters
(especially when, as in this case, all you have to do is enter some basic info
online and click yes), the lower the proportion of signatories who know much
about the underlying issues—even as the signatories trade on their professional
standing (as here, titles and schools always appear) to give an impression of
impartial expertise.
The professsors' letter also raises multiple specific concerns.
One obvious problem with the present letter is that when, on
September 27, Kavanaugh was responding to allegations of serious (and criminal)
acts, he himself wasn’t a judge deciding a case. So why in that
capacity would we expect him to act like a judge? An accused whose position is that
he is completely innocent should not be impartial. He should shout his
innocence from the rooftops. And if he believes there is a grave injustice
afoot, he should bring it to light not pretend to be perfectly happy with how
things are playing out and whatever conclusion is reached. That seems to me exactly
what out legal system permits and expects.
This doesn’t somehow mean, though, that when the judge
returns to the bench, as judge, to decide cases before him, he will continue to
act as though he himself is there as the (wrongly) accused. The context is entirely
different. Thus, while the letter makes much of the federal recusal statutes,
they are irrelevant. The recusal statutes don’t apply to a witness before the
judiciary committee, and in court they only apply on a case-by-case basis.
Contrary to the letter’s suggestions, they don’t tell us who and who cannot be
confirmed to the bench. Put differently, why wouldn’t Kavanaugh’s long service
as a sitting judge be the place to look to know whether he is impartial,
judicious, and so on? The letter makes no mention of whether the signatories
have ever themselves reviewed Kavanaugh’s judicial record or appeared before
him—much less why they believe what we know about Kavanaugh as a judge can be breezily disregarded.
A second problem with this letter is the suggestion that
everything else can be set aside because this one thing—Kavanaugh’s appearance
on September 27—is by itself grounds for voting no. Indeed, the letter even
suggests that some of the signatories view other factors actually to favor
confirmation (“We have differing views about the other qualifications of Judge
Kavanaugh…”) but that the September 27 hearing outweighs those otherwise
favorable attributes and is decisive. It seems only fair, then to ask this: how many
of the signatories supported (preferably publicly) the confirmation of Kavanaugh until they watched
him at the September 27 hearing and, on the basis of his testimony on
that date alone, changed their minds? I suspect far fewer than 1700.
Finally, in the opening paragraph, the letter quotes The
Federalist. The professors say:
The concern for
judicial temperament dates back to our founding; in Federalist 78, titled
“Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need
for “the integrity and moderation of the judiciary.”
Read in context (anybody can look it up) what Hamilton meant in Federalist 78 by “integrity and moderation” isn’t what the 1700 professors mean in
their letter by “integrity and moderation.” A small point but also revealing.