The Professors’ Letter Against Kavanaugh Undermines the Legal Academy

I was asked to sign law professors’ letters on behalf of the confirmation of both Brett Kavanaugh as a Supreme Court justice and Amy Coney Barrett as an appellate judge. I refused in both cases. That was not on account of my opposition. Indeed, as a citizen I supported confirming both nominees and am pleased by their confirmations. But as a scholar, I had nothing to contribute to public understanding.

I had read one or two of Brett Kavanaugh’s opinions, but had no basis for evaluating the breadth of his work. I had read only one very short essay by Amy Barrett and thus I could not pass a scholar’s judgement on her scholarly work. Had I been a federal courts expert familiar with her work in that area I could have potentially signed a letter for Barrett or had I been a D.C. Court watcher, I could have signed one for Kavanaugh, had my review of their output so warranted.

Sadly, almost all of the 2,400 law professors who signed a letter opposing now-Justice Kavanaugh on the basis of temperament showed no such scruples. Very few are experts in either the psychology of judging or judicial ethics—the subjects of the letter. They have nothing in particular to contribute to the question of whether Kavanaugh’s testimony would require wholesale recusals from future cases or whether it demonstrated an inability to be impartial in judging, let alone whether these propositions should cause his nomination to be rejected.

One of the most important attributes of being a scholar is to take account of serious counterarguments. And here the letter was singularly unscholarly. As my colleague Mike Rappaport has noted, the Supreme Court itself has suggested the difficulties of inferring bias from a context in which the arbiter responds to a personal attack. Not that one needs to have read this point in the Supreme Court to recognize that this is an important issue. Yet the letter not only does not acknowledge this point but suggests that Kavanaugh should have treated claims that he attempted to rape someone 35 years ago with an “open search for accuracy,” much like a judge at a trial, who, of course, is never the accused.

Moreover, the letter shows no understanding of an important proposition about psychology, the fundamental attribution error. This is the error of assuming that how someone behaves in one context is a good predictor of his or her behavior in a very different one. Thus, a law-and-psychology perspective would suggest that how one acted when accused of attempted rape does not shed much light on how one would act as a judge.

I am not taking a position on these counterarguments (I am not a scholar in these disciplines), only that they are so important that no scholar writing an article to say the Kavanaugh was unfit could ignore them without accusations of professional incompetence.

Amusingly, a letter about bias also raises issue of, well, bias. Scholarship about the legal academy has demonstrated that law professors are far more left-wing than the general population, skewing Democratic by ratio of almost 5 to 1. It seems unlikely that any of the signers ever supported Kavanaugh in the first place.

There is a lot of talk about how Kavanaugh’s confirmation may erode the legitimacy of the Supreme Court. But this letter further erodes the legitimacy of the legal academy, as well as any notion that anyone should pay any attention to legal scholars when they speak collectively on an issue of public concern.


Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 09, 2018 at 09:43:40 am


read full comment
Image of Kevin Gutzman
Kevin Gutzman
on October 09, 2018 at 10:01:48 am

"But this letter further erodes the legitimacy of the legal academy, as well as any notion that anyone should pay any attention to legal scholars when they speak collectively on an issue of public concern."

Do not forget the example of Duke University Law School, which saw the Duke lacrosse case unfold right in its own backyard, and to Duke students, and never uttered a peep.

Imagine Scottsboro having a nationally ranked law school, and all the students and professors there keeping mum about that case.

Duke moreover had two professors who were often mentioned as potential SCOTUS nominees: Dellinger and Chermerinsky.

Don't rely on academia or law schools to be temples of justice and right; they set their sails to the PC winds as much as anybody.

read full comment
Image of Chavez
on October 09, 2018 at 10:05:25 am

It is all for *show*, an opportunity to demonstrate one's own bona fides and to elicit "knowing' support from those similarly inclined.

My God, it strikes me that this nation has become nothing more than a nation of emotional cripples ever in need of affirmation from other EC types proudly professing their own *particularized* preferences while asserting the universality of their *particular* vision.

"Tell me how wonderful I am; but first let me tell YOU just how wonderful I actually am."

This is what passes as scholarly dispositions.

read full comment
Image of gabe
on October 09, 2018 at 10:08:23 am

Not only do they set the sails, they set the "course" and provision the ship.

read full comment
Image of gabe
on October 09, 2018 at 12:47:22 pm

Not exactly a ringing denunciation. I submit that McGinnis' relentless invocation of the S word is far more powerful evidence against the academy than the anti-Kavanaugh letter. The unctuous professional courtesy, the conditioned reflex to remain within the confines of one's own narrow box and the exhortation of others to do the same, the surrender of one's own reason (Pusillanime aude!) in the name of "scholarship"--this is the pathogen of the professors.

The career imperatives of the academy have distorted the meaning and usefulness of scholarship probably beyond repair.

read full comment
Image of QET
on October 09, 2018 at 14:28:13 pm

For me, it was several dozen perjurious (or at least, deliberately misleading) statements, and this remarkable piece of deception:

"I’ve never done any such thing, known about any such thing. When I was in high school – and I went to an all boys Catholic high school, a judgment (ph) high school, where I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship, friendship with my fellow classmates and friendship with girls from the local all girls Catholic schools.

And yes, there were parties. And the drinking age was 18, and yes, the seniors were legal [demonstrably untrue] and had beer there. And yes, people might have had too many beers on occasion..."

People drank too much, but not him? His own handwritten letter ("P.S. It would probably be a good idea on Sat. the 18th to warn the neighbors that we’re loud, obnoxious drunks with prolific pukers among us”) impeaches him. Half the truth is often a lie in effect.

But Justice Stevens is correct. "At that time, I thought [Kavanaugh] had the qualifications for the Supreme Court should he be selected," Stevens said, according to the Palm Beach Post. "I've changed my views for reasons that have no relationship to his intellectual ability ... I feel his performance in the hearings ultimately changed my mind."

"What goes around, comes around." During this process, Kavanaugh has revealed that he is a vindictive partisan with a violent temper. There are a lot of talented lawyers who have no business being on our nation's highest Court, and he might be one of them. Frankly, had a lesser man thrown a temper tantrum of that magnitude in that forum, he would have been disbarred. That the academy should remain silent in the face of such provocation is absurd.

read full comment
Image of Bart O'Kavanaugh
Bart O'Kavanaugh
on October 09, 2018 at 15:25:04 pm

“. . . any notion that anyone should pay any attention to legal scholars when they speak . . . on an issue of public concern.”

Every civic citizen knew on watching the event that Kavanaugh had addressed Dr. Ford’s claims civilly and kindly but the Democrats’ evil against Ford and Kavanaugh with well-earned contempt. That is too easily written to justify an essay about biased scholarship. Actually I just wrote a redundancy: scholarship is unwanted bias when what is needed is integrity. Neither scholarship nor honesty is a surrogate for integrity.

Unfortunately many professors seem to never accept that they are fellow citizens. While they enjoy the higher bargain in the classroom---respect for grades---they may be equal in public collaboration, depending upon whether or not they accept and collaborate-in the civic agreement.

In this country, the civic agreement is stated in the preamble to the U.S. Constitution. Unfortunately, most scholars do not admit that the preamble is also a civil agreement and thereby a legal document in its completeness: civically-disciplined fellow citizens manage both their state and the federal government.
On the preamble’s legal strength, the existing confederation of Atlantic seaboard states northeast of both Spanish and French territories had the opportunity to join the Union that was established on June 21, 1788 by only nine of the aforementioned states. The other four states remained, according to the 1783 Treaty of Paris, free and independent countries in the world. The nine-state Union had the authority, granted by ratifying the preamble and its articles, to begin operations on March 4, 1789. By then there were eleven states in the Union, with only two Atlantic-seaboard countries.

The Union’s people were mostly unaware of the civic agreement that was offered them, and the elites have tried to keep it that way ever since. Political regimes’ most egregious offense has been to label the preamble “secular,” whereas it is neutral to religion as well as gender, race, and ethnicity.

Religion, in particular Christianity, has been spectacularly ruinous opposition to the civic agreement. To the point, people in the south, for example R. E. Lee, held that abolitionists were attempting to force an end to God’s plan to redeem blacks; https://leefamilyarchive.org/9-family-papers/339-robert-e-lee-to-mary-anna-randolph-custis-lee-1856-december-27. Lee had access to both Frederick Douglass’s 1852 claim that Douglass was a fellow citizen and the determination of Massachusetts abolitionists who became “free soilers” in Lawrence, KS. The military power of We the People of the United States proved that the “more erroneous religious belief” was in the south.

The preamble’s essence is in many Americans’ genes and memes, even though most cannot articulate the its purpose and goals---might even denigrate the subject with the “we, the people” font rather than We the People of the United States.
Yet civic people as well as many dissident fellow citizens could watch both Ford and Kavanaugh and the Republicans’ interrogator and conclude that the Democratic party had done evil to Dr. Ford, a person whose concern should have been addressed in privacy as soon as the California Democrats---her representative and her senator---learned of her errant beliefs (errant in absence of corroboration much less proof if not errant in fact).

And it takes awareness rather than scholarship to recognize that Judge Kavanagh was sincere when he said, “We wish Dr. Ford no harm.” And he was equally sincere when he objected with the wrath of a god facing death when he turned over the Democrats money table in the Senate temple.

Individuals who hold scholarship above fellow-citizenship are dissidents to the civic agreement by which willing citizens collaborate for ultimate statutory justice.

The writers in this forum have a pivotal opportunity to elect personal equality as fellow citizens under the preamble to the U.S. Constitution: equality under the law.

read full comment
Image of Phil Beaver
Phil Beaver
on October 10, 2018 at 12:52:06 pm

O’Kavanaugh, acting as an erroneous civilization’s legislator, enforcer, indictor, prosecutor, and judge, castigates the human-civilization side of Justice Kavanaugh’s actual reality.

My hope is that Justice Kavanaugh will help the nation practice the civic and legal power of We the People of the United States as defined in the preamble to the U.S. Constitution. He has the necessary experience, observations, and obligations to his grandchildren and beyond (the preamble’s “our Posterity”) to help establish separation of church from state at last.

Perhaps unintentionally, then Judge Kavanaugh described the victimization of adolescents in this civilization. Adults manipulate existence to instill and nourish banal appetites. One of the worst is taking so much from GDP that you can be a “philanthropist,” or civil manipulator. That is, have enough power to manipulate the GDP in personal favor, claiming to help the poor. Just now the national debt is 21.619 trillion dollars; http://www.usdebtclock.org/.

Philanthropic businesses often have very dark sides. Catholic schools dress little girls in short skirts so as to satisfy the intimate imaginings of both males and females in whose care the girl’s parents erroneously trust. When the girls get bigger, they mysteriously sense the sexual powers they have without sufficient understanding to avoid the predation that surrounds them. High school boys and girls understand the evil they are in but have no guidance for how to handle it: Some parents themselves behave as adolescents---have no thought for grandchildren and beyond.

How can anyone imagine rare adolescent integrity in this culture? The human body does not complete the construction of the wisdom parts of the brain until a quarter-century has passed. Given a little time for experience and observations to influence the individual, he or she is fortunate to discover integrity before the body, mind, and person stop functioning. Most humans live and die never achieving honesty with themselves, let alone integrity. Perhaps achieving the integrity to the extent of the person’s natural abilities is the meaning of human life. I hope so, because that is what I work for, low as I may be. I hold civilization responsible for not encouraging and coaching children to discover and develop integrity.

The Catholic Church and the US failure to separate church from state is at the core of this dilemma. (Consider the Catholic dominance on the Supreme Court.) Catholic spokeswoman Kathryn Jean Lopez, blaming a woman’s responsibility to decide whether or not to remain pregnant, invokes the mysterious Church propaganda with unintended honesty: “As humans, we do things that we are ashamed of. By God's grace, the wisdom of experience and the process of maturity, hopefully we move beyond some of the worst of it.” See https://www.pottsmerc.com/opinion/kathryn-lopez-stop-the-trashing/article_3292756c-c8ec-11e8-bf4c-8f3c73f4762c.html. “God’s grace” is the mystery on which people deny the human condition: each human being has the individual power, the individual energy, and the individual authority (IPEA) to either develop integrity or not. IPEA cannot be bargained to the Church.

I guess in “ashamed of” Lopez is referring to Dr. Ford’s possible observation that in adolescence she did not listen to her mom and dad’s caution not to climb the stairs to the privacy of the bedroom while drinking beer at a party. I regret the evidences Ford shared in public rather than in private. She seems a victim of the intrigue of the California Democrats and perhaps the rest of the Democrat scoundrels.

Lopez invokes Alinsky-Marxist organizational (AMO) collectivism in “Our challenge is the same it has always been, in every movement to eliminate injustice and oppression -- from abolitionism to the civil rights movement to our pro-life movement.” She obfuscates the Catholic Church’s doctrine of discovery and “authorization” of slave-trade to support agricultural colonialism. Who is included in her “our.” I assert it is not We the People of the United States, at least not intentionally.

In England, the church-state partnership is constitutionally required. I suppose that situation developed from Magna Carta, which is a sordid history of competition between the Catholic Church and Protestantism, in particular Canterbury, and partnership with the lords. Elites in America wanted to compete with the “divinity” of the Canterbury-Lords constitutional Parliament, some so fervently that they did not sign the 1787 Constitution. It specified a representative republican federalism with people willing to agree to a civic discipline to manage both their state and the Union. Revolutionary representative republicanism! The 1789-1793 Congress temporally undid the separation from England that the preamble and the articles that follow offered, by hiring Congressional chaplains at the people’s expense (and I refer not to money) and promoting religion rather than civic integrity in the First Amendment. We the People of the United States may establish self-discipline among fellow citizens and restore representative republicanism.

Never has the need for civic integrity rather than religion been more evident, and I doubt there has been a more mindful new Supreme Court justice to influence the reform. Fellow citizens can help by reading the preamble with the idea that was expressed by the Greeks of Athens in competition with Sparta 2400 years ago: citizens who agree to the law are equal. In the U.S., it’s citizens with the civic discipline that is expressed in the preamble collaborate to discover and effect statutory justice; dissident fellow citizens may observe a better way of living and reform.

Somebody told me the other day that I need a PhD to express ideas like these. Every fellow citizen can read the preamble to the U.S. Constitution and think. The only thing different about Phil Beaver, is that I read, write, speak, and LISTEN.

When there is silence, I realize the other party does not understand “fellow citizen” as I do---has a view of fellow citizen which is please with stonewalling as a form of censoring. Political factions have stonewalled the preamble for 230 years and denied equality under beneficial civic discipline rather than under religion for 2400 years.

read full comment
Image of Phil Beaver
Phil Beaver
on October 10, 2018 at 12:53:13 pm

Sorry: is please should be "is pleased."

read full comment
Image of Phil Beaver
Phil Beaver
on October 12, 2018 at 04:21:19 am

Nicely stated, O'Kavenaugh.

1. On Sept. 27, Kavanaugh said:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

* * *

As we all know, … what goes around comes around!

2. On October 2, I said:

The issue is that, having lost his composure, [Kavenaugh] proceeded to reveal his deep, tribalist animosity toward Democrats. So even if we conceded that he is otherwise blameless, lack of bias is a bona fide occupational qualification. And yes, I would hold myself to the same standard if I were sitting being nominated to the court.

As a slight aside, Kavenaugh seemed to allege that his treatment before the Senate Judiciary Committee had been driven by, among other things, a desire for revenge arising from his participation in Bill Clinton’s impeachment proceedings 20 years ago. Quick show of hands: Has ANYONE seen evidence supporting that claim? Does ANYONE believe that?

I don’t mean to suggest that Democrats aren’t being opportunist in seeking to investigate an allegation of sexual assault by a Republican nominee. Quite the opposite: Democrats would have done so regardless of the nominee’s involvement in the Clinton impeachment. I find it beyond credit that anyone would think otherwise–unless that person had a persecution complex. And Kavenaugh apparently does.

I have yet to encounter anyone who believes that Kavenaugh would have received any different treatment, even if he had never participated in the Clinton impeachment. But I will renew my question: Will anyone announce that they support Kavenaugh’s theory?

And if not, doesn’t this demonstrate a biased viewpoint?

3. After opining on the faults of a faculty letter against Kavenaugh’s appointment, McGinnis writes:

Amusingly, a letter about bias also raises issue of, well, bias…. It seems unlikely that any of the signers ever supported Kavanaugh in the first place.

Yes. And what conclusion should we draw from that?

After all, McGinnis has declared himself a Kavenaugh supporter, and indeed a partisan generally. Is he advocating that we reject his own arguments as mere manifestations of motivated reasoning?

read full comment
Image of nobody.really

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.