During the soap opera drama that surrounded the Kavanaugh Senate hearing, one important news item received considerably less attention than it deserved. That item was the letter titled “The Senate Should not Confirm Kavanaugh” that 2400 law professors signed and sent to the Senate.
Only 452 words in length, the letter was remarkable for its shallowness, illogic, and (genuine or feigned) ignorance of the law, a fact that is truly astounding when one considers that the signers “teach, research and write about the judicial institutions of this country” and many of them “appear in state and federal court, and . . . before the United States Supreme Court.”
The letter began by underscoring something no reasonable person could deny: the requirement of “judicial temperament,” that a judge be “’even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.’”
It then moved directly to the professors’ brief opposing Kavanaugh’s nomination. Their arguments were as follows. My analysis follows each:
Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
First, when does a judge display judicial temperament? The obvious answer is while executing his responsibilities as a judge. Thus the law professors would be justified in considering how Kavanaugh behaved during any or all of the hundreds of cases he presided over, but not elsewhere. The professors, of course, might say they really meant his “general temperament,” but that would raise the question, “Isn’t general temperament too broad a measure for the highly unusual situation in which a person was responding to an attack on his integrity?” Isn’t the context of the situation an essential consideration in evaluating his behavior?
Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
This charge is absurd, especially when made by those committed to the principle of relevance, and who have each spent years arguing cases in court. Collectively, their total years would no doubt be in the tens of thousands! Yet I doubt that in any of those courtrooms a defendant was ever expected to exhibit commitment to judicious inquiry, openness to the search for accuracy, and a focus on sorting out allegations with reason and care. That is because those matters are the job of the judge, not the defendant. And in the context of the Senate hearings, Kavanaugh was, in the most fundamental sense, the defendant.
Moreover, the professors’ tsk-tsking over Kavanaugh’s intemperate, inflammatory, and discourteous behavior to senators displays at best naiveté and at worst, bias. Did they not watch the entire hearing? Did they not see the rude, intimidating, accusatory, insulting behavior of the Democrat senators? Would they really expect anyone, least of all one who claimed innocence, to be calm and reserved and sweet of temper in the face of such extended assault? To expect that would be completely irrational.
Under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
What exactly did they mean by this? Kavanaugh was, in effect, a defendant in that hearing. The definition of recuse is “to disqualify or seek to disqualify (a judge or juror) from participation in the decision of a case, as for personal prejudice against a party or for personal interest in the outcome.” Do they seriously contend that a defendant should recuse himself? It is in the very nature of a defendant to be “prejudiced” for himself and against his accuser and to have a personal interest—indeed, a most important one—in the outcome of his case. The professors’ contention here is absurd and they should be embarrassed to have made it.
We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.
My response to the professors’ summation is the same as I believe they would give to law students who said something similar in a case the professors were objective about: “ No, no, no students! Here as elsewhere, circumstances alter cases, so context cannot be ignored.”
Why do I find a single letter from a group of law professors so important? Because it provides valuable insight into a phenomenon I wrote about recently—modern culture’s tendency to abandon objectivity for subjectivity, reason for emotion, and to reconcile conflicting views not on the basis of evidence but instead on which perspective fits one’s personal presuppositions and wishes.
I said above that the letter demonstrated shallowness, illogic, and ignorance of the law. I could as reasonably have said that it showed the cultural tendency mentioned in the last paragraph. The letter would have been pathetic if it had been signed by a single law-school dropout, but in fact it had 2400 distinguished signatories. That number included a total of 317 professors from ten of the most renowned law schools in the nation: Yale, Harvard, Berkeley, NYU, Stanford, Columbia, and the universities of Virginia, Michigan, Pennsylvania, and Chicago. (Note: See this link for all 2400 names and academic affiliations.)
Evidently, not a single professor who signed that letter noticed that it failed to mention one of the most important principles of the American legal system—the presumption of innocence—even though it was clearly relevant to the Senate confirmation proceedings. That fact, together with the knowledge that the professors who signed the letter are at this moment educating the next generation of lawyers, law professors, scholars, trial lawyers and judges, is more than sufficient reason to fear for the future of American jurisprudence.
Copyright © 2018 by Vincent Ryan Ruggiero. All rights reserved