What do we law teachers do now?
Whether we are `originalists' , "natural law" lawyers, or "living constitutionalists" we law professors all approach our work with the idea that there are correct, incorrect, or best answers to questions like: what are the limits of Presidential powers? Does Equal Protection of the Law demand same sex couples be allowed to marry? Is abortion infanticide? Or a woman's lawful choice?
We operate on the assumption that judges' answers are ideologically driven - but constrained by legal principles and rules of construction on which we broadly agree. And that the judges of collective courts - like the U.S. Supreme Court - engage in dialog in good faith - open to persuasion.
But two recent developments challenge that. The first is the appointment of Neil Gorsuch to a seat that ordinarily would have gone to a nominee of the sitting president - Barack Obama. But instead went to a judge selected for an ideological mission hostile to that of the President who normally would have filled that slot. An extremely conservative judge occupying a stolen seat is how he appears to many of us.
Now we see Brett Kavanaugh stepping up to the Supreme Court. 2,500 of us have declared in writing that we don't think he should be on the Court. Extreme partisanship, dishonest testimony regarding youthful (and not so youthful) conduct, and a personal demeanor before the Senate that led a retired Justice, and the American Bar Association to withdraw support for the nomination.
Are judges disinterested neutrals? Are they agents of their political party? Is there such a thing as a correct answer? Or is it all a matter of personal preference - of the deciding judge? - gwc
Opinion | The Senate Should Not Confirm Kavanaugh. Signed, 2,400+ Law Professors. - The New York Times
***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.
Whether we are `originalists' , "natural law" lawyers, or "living constitutionalists" we law professors all approach our work with the idea that there are correct, incorrect, or best answers to questions like: what are the limits of Presidential powers? Does Equal Protection of the Law demand same sex couples be allowed to marry? Is abortion infanticide? Or a woman's lawful choice?
We operate on the assumption that judges' answers are ideologically driven - but constrained by legal principles and rules of construction on which we broadly agree. And that the judges of collective courts - like the U.S. Supreme Court - engage in dialog in good faith - open to persuasion.
But two recent developments challenge that. The first is the appointment of Neil Gorsuch to a seat that ordinarily would have gone to a nominee of the sitting president - Barack Obama. But instead went to a judge selected for an ideological mission hostile to that of the President who normally would have filled that slot. An extremely conservative judge occupying a stolen seat is how he appears to many of us.
Now we see Brett Kavanaugh stepping up to the Supreme Court. 2,500 of us have declared in writing that we don't think he should be on the Court. Extreme partisanship, dishonest testimony regarding youthful (and not so youthful) conduct, and a personal demeanor before the Senate that led a retired Justice, and the American Bar Association to withdraw support for the nomination.
Are judges disinterested neutrals? Are they agents of their political party? Is there such a thing as a correct answer? Or is it all a matter of personal preference - of the deciding judge? - gwc
Opinion | The Senate Should Not Confirm Kavanaugh. Signed, 2,400+ Law Professors. - The New York Times
***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.
Signed, with institutional affiliation listed for identification purposes only, by the following: 2,500 (at last count) law professors
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