Thursday, October 04, 2018

Kavanaugh: The Professors' Letter

Jason Mazzone

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.

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