Senators should remember that the purpose of the confirmation process is not to confirm the president's nominee: it is to protect the judiciary.
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.