Thursday, October 4, 2018
Law professors are not known for their activism. Many prefer to sit in a quiet office delving into opaque topics of law and write law review articles that few members of the public read. Some present in forums for the general public, though most prefer the wonky legal academic conferences where the audience is comprised mostly of other law professors and some law students. Focus on process and deliberation results in events and publications being planned over the course of months, if not years.
Hence, when over 2400 (and counting) law professors from all over the country sign a letter opposing Senate confirmation of Judge Kavanaugh to the U.S. Supreme Court, loud alarms are going off from within the legal academy. Only grave reservations about the Supreme Court's legitimacy could cause such a rare outcry.
That such a large number of professors from across the country were moved within a matter of days to sign a single letter is no small feat. These legal scholars and trainers of the next generation of judges, lawyers, and leaders are clearly shaken by Judge Kavanaugh's behavior last week before the Senate. They worry he "exhibited a lack of commitment to judicious inquiry," "was repeatedly aggressive with questioners," and responded to Senators' questions "in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to senators." And he was especially disrespectful of the female senators.
More than anyone, law professors have a deep appreciation for the importance of judicial temperament of a Supreme Court Justice whose vote affects the lives, liberty, and property of hundreds of millions of Americans. For the sake of preserving the legitimacy of the U.S. Supreme Court, let's hope the Senators realize the momentous significance of this collective action.
The full text of the letter is available here and below.
Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” 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.”
We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, 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.
The question at issue was of course painful for anyone. But 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. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. 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.
As you know, 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.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.
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.