Yale Law Fails the Kavanaugh Test

Each Supreme Court vacancy renews the perennial debate about the best way forward for constitutional law. Law-school graduates have a special obligation to inform that discussion.

This week, as Americans confronted Brett Kavanaugh’s nomination to the Supreme Court, Yale’s legal community twice failed to responsibly discharge its civic duty. A statement published by Yale Law School was strike one. A response signed by dozens of Yale Law students, alumni, and educators was strike two. Together they’re a case study in ways that self-indulgence from elites can dumb down civic life, though I should be clear that not all Yalies are implicated.

Few issues in American civics are as complex as a Supreme Court nomination. Even the most conscientiously informed citizen can be forgiven for meeting a nomination with uncertainty.

Supreme Court justices interpret the most contentious passages in the U.S. Constitution, often rendering judgment in precisely those cases where educated people of goodwill are in sustained conflict about the proper outcome. That job would be hugely difficult even if everyone accurately anticipated all the controversies that would underpin future cases and agreed on the optimal jurisprudential philosophy that should guide high-court jurists.

Yet many important matters that the Court will confront are unknowable, and how best to confront them is contested. Even principled experts who’ve staked out internally consistent approaches find themselves in abiding disagreements with one another, while most Americans are conflicted and inconsistent on questions such as the degree of deference the judicial branch owes to legislators, how strictly judges should adhere to what the words of the Constitution meant when it was ratified, whether adherence to the law or a just outcome is paramount, and the degree of deference that bygone Supreme Court decisions are owed.

What’s more, many partisans and interest groups take self-contradictory positions on all these questions, trying to sway political opinion in whatever way is momentarily convenient with no regard for how their words mislead, confuse, or polarize.

Those are among the challenges American citizens face as they grapple with this week’s nomination of Kavanaugh to replace Anthony Kennedy on the Supreme Court (a nomination that I don’t yet know whether I will support or oppose).

While there is still time for interested citizens to become more informed, members of America’s legal elite ought to be a force for clarity and understanding, marshaling their expert knowledge to help the public through thickets of misinformation. Many members of the legal profession are rising to the occasion—examples I’ve found particularly helpful include the attorney Ken White’s analysis of “a very narrow issue,” Kavanaugh’s “treatment of free speech law under the First Amendment as a judge on the United States Court of Appeals,” and David Kopel’s distillation of the nominee’s thinking on the Second Amendment.

Now consider Yale Law’s contributions, starting with the press release they sent out when news broke that one of their alumni was nominated to the Court. A purist might question why an academic institution employs any public-relations professionals who write press releases in the manner of for-profit corporations.

As a squishy pragmatist, I could forgive a press release that straightforwardly announced, “President Donald Trump today nominated Brett M. Kavanaugh ’90, a judge on the U.S. Court of Appeals for the D.C. Circuit, for the seat on the U.S. Supreme Court being vacated by retiring Justice Anthony Kennedy,” as Yale’s release began, and that added, “Judge Kavanaugh graduated from Yale College in 1987, and from Yale Law School in 1990, where he was a Notes Editor of the Yale Law Journal. If confirmed, Judge Kavanaugh would join three other Yale Law School graduates currently on the Court—Justice Samuel Alito ’75, Justice Sonia Sotomayor ’79, and Justice Clarence Thomas ’74.”

Yale’s overrepresentation on the Court is an indictment of presidential elitism, but it probably does no harm for the institution to tout its ties to accomplished judges.

What rankled me was the rest of the press release: It might’ve been rounded out with a list of faculty members willing to publicly comment on the nomination in accordance with their respective judgments of its merits, positioning Yale Law as a place where diverse scholars labor to reach independent judgments on matters touching their expertise, and to share their insights with the public in a manner that informs debate on vital matters of civic life.

Surely within Yale there are professors offering insightful arguments for and against Kavanaugh’s confirmation, as well as discrete insights varied enough to account for marks on both sides of the ledger.

Instead, the press release included adulatory quotes from Dean Heather Gerken and from professors including Kate Stith, Akhil Reed Amar, William Eskridge, and Abbe R. Gluck, unaccompanied by any criticism whatsoever, as though Yale Law encompasses no professors with smart, deeply held concerns about the nominee. Those voices were excluded from Yale Law’s statement because it was an exercise in public relations rather than a contribution to civic or scholarly life.

That the public voice of a highly esteemed university so closely resembles that of a PR firm is hardly unique to Yale or to this moment, but is nevertheless lamentable. If the Yale students, alumni, and faculty who signed a statement responding to the press release had confined themselves to that critique, I’d have applauded.

Instead, the Yalies who objected to their institution’s PR statement strayed into all sorts of dubious critiques, objectionable not because they opposed Kavanaugh’s confirmation, but because of how they opposed it. Early on, they wrote:

Judge Kavanaugh’s nomination presents an emergency—for democratic life, for our safety and freedom, for the future of our country. His nomination is not an interesting intellectual exercise to be debated amongst classmates and scholars in seminar. Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people.

Already the signatories were conflating that which is hugely consequential with “an emergency.” A vacancy on the Supreme Court is not “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” It is an anticipated certainty in American civic life; the Constitution set forth an institutional response to it; and so far that process is playing out lawfully.  

That is not to understate the stakes—if the nominee is confirmed, the rulings he makes will inevitably bear on democratic life, safety, freedom, and our country’s future. But the same could be said for every bygone Supreme Court vacancy, presidential election, Senate race, House campaign, and gubernatorial race. The signatories seem to yearn for a politics with lower stakes. While I sympathize, it worries me that people with Ivy League legal educations imagine high-stakes politics to be “an emergency” rather than a perennial inevitability that has always conferred a heavy burden on all citizens.

I guess this is growing up.

Next, the signatories worry that Kavanaugh will vote to overturn Roe v. Wade, the landmark abortion-rights case that finds in the Constitution a right to privacy that constrains democratic majorities from passing laws that ban abortion.

I respect the pro-Roe reading of the Constitution.

But a few paragraphs later, the signatories declare that Kavanaugh “would pose an existential threat to the government’s ability to regulate for the common good,” ushering in “a new era of Lochner, with ‘black-robed rulers overriding citizens’ choices.’” It is perfectly fine for the signatories to believe that the Constitution forbids democratic majorities from passing certain laws and permits them to pass others. But articulating that position with intellectual honesty requires distinction-drawing arguments of a sort missing from the letter. Instead it tosses off demagoguery about “black-robed rulers,” as if the signatories take a consistence stance against overruling what is popular. When they oppose what is popular they are all for judges who thwart the populous.

It is likewise misleading to describe a jurist known to believe that a fetus is a human life as someone who has consistently “disregarded the rights of vulnerable individuals.” Kavanaugh’s position on abortion, right or wrong, is premised partly on his concern that vulnerable individuals are being harmed and that the Constitution does not foreclose laws offering them more protection.

One needn’t embrace pro-life views to take the position of those who do seriously.

The letter cites other cases in which the signatories disagree with the outcome of Kavanaugh’s rulings as a matter of policy, without ever demonstrating—and only sometimes asserting—that Kavanaugh reached the wrong decision as a matter of law. It isn’t always clear that the signatories draw any such distinction. Ultimately, without having ever built a case that his rulings are legally suspect, they write, “We see in these rulings an intellectually and morally bankrupt ideologue intent on rolling back our rights and the rights of our clients.” They go on to assert that he lacks “a commitment to law and justice.”

I do not object, because I find those accusations impermissibly impolite. If a solid, substantive case can be made that Kavanaugh’s decisions are not just mistaken, but “intellectually and morally bankrupt,” or that he is “an ideologue” who is “intent on rolling back our rights,” rather than a jurist motivated by adherence to the Constitution who has a different interpretation of what it demands, I am eager to see that case prosecuted with an unsparing vocabulary.

But the signatories levy those grave accusations irresponsibly—that is to say, they proceed without the modest check of setting forth arguments and evidence to justify them, though all have presumably been trained to argue in that way.

The signatories conclude:

Now is the time for moral courage—which for Yale Law School comes at so little cost. Perhaps you, as an institution and as individuals, will benefit less from Judge Kavanaugh’s ascendent power if you withhold your support. Perhaps Judge Kavanaugh will be less likely to hire your favorite students. But people will die if he is confirmed. We hope you agree your sacrifice would be worth it.

That is to say, rather than assuming that there is disagreement within Yale Law School about Kavanaugh’s merits, and that their role is to bring Kavanaugh supporters in their community around to accept their scathing analysis of the man and his jurisprudence, they presume the jurist’s deplorability and irredeemability is fact—that it is known to all, and that those who are saying nice things about him do so not because they have genuine respect for the guy, but because they are disingenuously courting power due to a lack moral courage.

The signatories presume that what’s needed is moral shaming rather than persuasion, as if unable to acknowledge or conceive of good faith disagreement, even knowing the man under discussion was admitted to Yale as an undergraduate, admitted again to Yale Law, and later hired by Yale Law to teach a class. Little surprise that there are those at Yale Law who earnestly respect him!

With every Supreme Court nomination, a partisan PR machine arises to laud the person seeking confirmation; an organized opposition denounces the nominee with as much zeal and as little nuance; and their clashes disorient many citizens, muddying their thinking with untruths, fallacies, internally inconsistent arguments, and more nonsense besides.

Elite schools of law and people with degrees from those schools can indulgently join those scrums. They have all the same temptations as other participants. Or they can decline to use the moment as an occasion to aggrandize their institutions. They can decline to advance the outcome they desire with bad arguments. They can choose language that sheds light, rather than heat, on the debate. They can use, rather than abdicate, the aptitude that helped them score unusually highly on tests for critical reading, verbal reasoning, and analytical thinking.

Noblesse oblige is “the inferred responsibility of privileged people to act with generosity and nobility toward those less privileged.” Is that too much to ask of an Ivy League law school’s stakeholders as the nation mulls a Supreme Court nominee?