Yale: The Grown-Ups Show Up

Needless to say the Kavanaugh nomination has sent the left borking mad. And that’s their problem: having changed decisively the politics of Supreme Court confirmations with their egregious treatment of Robert Bork, they are stuck in a box canyon of their own making, with their base expecting them to turn it up to 11 on the Borking Scale with every Republican nominee. I persist in arguing that the Bork tactic could only work once (especially if Republicans have a Senate majority). The rules changed in 1987, and now that we understand that the right will not be caught flat-footed again.

We noted Yale Law School’s beclowning itself over the Kavanaugh nomination (“people will die!TM) a couple days ago, so it is worth noting that the grown-ups have shown up, clearly embarrassed by the silliness of the attacks on Kavanaugh from their students and lesser colleagues on the faculty, with an open letter that all but formally endorses Kavanaugh’s confirmation. Here are some highlights:

Letter from Yale Students, Alumni, and Faculty in Support of Judge Brett M. Kavanaugh

July 12, 2018

We write as students, alumni, and faculty proud of our alma mater. We join Yale Law School in its praise of distinguished Yale alumnus Judge Brett Kavanaugh.

Judge Kavanaugh is eminently qualified to serve as a Supreme Court justice. Judge Kavanaugh, a graduate of Yale College and Yale Law School, is one of our nation’s most distinguished jurists. In his twelve years of service on the United States Court of Appeals for the D.C. Circuit, he has demonstrated a principled approach to interpreting the law. He has reached legal conclusions free of political partisanship. Judge Kavanaugh has devoted his professional life to upholding the rule of law and our Constitution. . .

The letter goes on to note praise from Kavanaugh from a number of senior left-of-center figures on the faculty, like William Eskridge, Heather Gerken, and Akhil Amar:

We admire the Yale Law faculty who have spoken in support of Judge Kavanaugh’s qualifications and commitment to the Constitution. Some selections of our faculty’s comments are below:

“I can personally attest that, in addition to his government and judicial service, Judge Kavanaugh has been a longtime friend to many of us in the Yale Law School community. Ever since I joined the faculty, I have admired him for serving as a teacher and mentor to our students and for hiring a diverse set of clerks, in all respects, during his time on the court.”
—Heather K. Gerken, Dean and Sol & Lillian Goldman Professor of Law

“Judge Kavanaugh commands wide and deep respect among scholars, lawyers, judges, and justices.” “Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer the Court. Several of Kavanaugh’s biggest ideas have found their way into Supreme Court opinions. Thanks to decades of high-level experience and close observation, Kavanaugh also understands the intricacies of the executive and legislative branches.”
—Akhil Reed Amar, YLS ‘84, Sterling Professor of Law

“Brett Kavanaugh has been one of the most learned judges in America on a variety of issues, ranging from theories of statutory interpretation to separation of powers.” “We are proud that he is our graduate and eager to continue to learn from his judicial opinions and scholarly publications.”
—William N. Eskridge, Jr., YLS ‘78, John A. Garver Professor of Jurisprudence

“Politics have deeply harmed our Supreme Court nomination process.” “But in terms of the man now before us, Brett Kavanaugh is a true intellectual–a leading thinker and writer on the subjects of statutory interpretation and federal courts; an incomparable mentor–someone who picks law clerks of all backgrounds and viewpoints; and a fair-minded jurist who believes in the rule of law. He is humble, collegial and cares deeply about the federal courts.”
—Abbe R. Gluck, YLS ‘00, Professor of Law

In our deeply polarized climate, these respectful, civil, and entirely accurate comments are a breath of fresh air.

But don’t these good Yale liberals know that people will die!TM  if Kavanaugh is confirmed??

Suggestion: If you are a Yale Law alumnus, you should add your signature to this open letter. I’m thinking about adding my great grandfather (Yale Law, class of ’89—that would be 1889) just for grins.

But while we’re here on the subject of Yale Law, let’s linger a moment on Akhil Amar’s New York Times op-ed from Tuesday, “A Liberal’s Case for Brett Kavanaugh.” You should know that Amar is one of the smarter left-of-center legal thinkers around, rating about a 7.5 on the Official 1 to 10 Cass Sunstein Scale. I have read and profited from several of his books. He has long understood the power of, and taken seriously, conservative perspectives on jurisprudence, and has done his best to counter them with sophisticated arguments that deserve reciprocal notice from conservatives. As such he is a worthy adversary, unlike, say, more crazed leftists like Mark Tushnet of Harvard Law. (Tushnet is the guy who in 2016, anticipating a Hillary victory and a subsequent decisive tilt of the Supreme Court to the left, wrote “fuck Anthony Kennedy.” A real portrait in moderation and magnanimity.)

Amar’s Times article is a typically clever and original line of argument. Kavanaugh should be confirmed, Amar thinks, likely because Amar knows Kavanaugh will be confirmed:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that. . . it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.

But the rest of the article constructs a subtle case with the goal of figuring out how to advance the cause of liberalism in this current adverse situation. Here’s where it gets interesting:

I propose that the Democrats offer the following compromise: Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.

Fair questions would include inquiries not just about Judge Kavanaugh’s past writings and activities but also about how he believes various past notable judicial cases (such as Roe v. Wade) should have been decided — and even about what his current legal views are on any issue, general or specific.

Everyone would have to understand that in honestly answering, Judge Kavanaugh would not be making a pledge — a pledge would be a violation of judicial independence. In the future, he would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders. But honest discussions of one’s current legal views are entirely proper, and without them confirmation hearings are largely pointless.

To borrow the current cliche, “I see what you did there!” Amar is clearly trying to break down the current well-established practice that nominees withhold comment on hypothetical cases that might come before him or her on the bench. This is a Hail Mary pass in an attempt to compel Kavanaugh to address correctly the main thing on the mind of liberals—Roe v. Wade—in hopes that a candid answer might tip the scales of public opinion against him and defeat his confirmation.

Nice try, but it won’t fly. For one thing, there is zero chance Senate Democrats will embrace Amar’s suggestion of naming two acceptable candidates a Republican president could name instead of Kavanaugh. Chuck Schumer has already offered his suggestion of an acceptable nominee: Merrick Garland. But Amar’s article is a sign of the desperation of the Democrats, unable to find themselves a way out of the box canyon they drove themselves into 30 years ago with their shameful treatment of Robert Bork.

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