No Going Back to YaleYonoson Rosenblum
It only reinforced the decision we made 40 years ago
Wednesday, October 31, 2018
Over the course of Justice Brett Kavanaugh's lengthy confirmation process, I must have read over a hundred articles and op-eds dealing with the issue. Inevitably, I had to ask myself: "Why do I find this so interesting?"
Then it hit me: Almost everything I read only served to reinforce the decision made 40 years ago to make our lives in Eretz Yisrael. The bitterness of all discourse touching on politics and the animus to everyone of a different opinion that characterizes America today bears little resemblance to the America in which I grew up, in which a broad bipartisan consensus existed on most major issues.
Nice people today suggest that all political discussions be avoided. Less gentle souls simply denounce one another. But too rarely does substantive, empirically-driven debate take place.
A corollary of my delight at no longer residing in the United States was a particular rejoicing that I am not likely to ever again have occasion to visit the precincts of Yale Law School.
MANY HISTORIANS have marked the turning point in American political culture — certainly with respect to Supreme Court nominations — as the 1987 hearings on the nomination of Robert Bork to the Supreme Court. Prior to Bork's nomination, the governing standard for Senate confirmation was demonstrated legal competence, coupled with no glaring ethical failings.
By that standard, Bork should have been a shoo-in. He was the most influential anti-trust scholar of his generation, a former solicitor general, judge on the D.C. Circuit Court of Appeals, and a chaired professor at Yale Law School.
Senator Ted Kennedy fired the first salvo from the Senate floor shortly after the nomination was announced. "Robert Bork's America is a land in which... blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens."
With that shamelessly false tirade, Kennedy introduced a new verb into the dictionary: "to bork." But it was effective. Bork's nomination was easily defeated 58–42 by the Senate. No nominee after Bork would ever repeat Bork's mistake of offering an honest evaluation of the legal reasoning behind Supreme Court decisions in cases of great importance to partisans on all sides, like Roe v. Wade. They would all follow the Ruth Ginsburg dodge of refusing to comment on any case that might one day appear or reappear before the Supreme Court.
From Bork on, confirmation fights have focused on the likely political outcomes that a particular nominee might further or retard, rather than on the nominee's legal abilities. And that was certainly the underlying motif for the Kavanaugh nomination.
About his legal qualifications there is no debate. Decisions of the D.C. Circuit in which Kavanaugh wrote the majority opinion have been reviewed by the Supreme Court 14 times. In 13 of those cases, the Supreme Court followed his legal analysis. When Justice Elena Kagan was dean of Harvard Law School, she invited Kavanaugh to teach an annual course on separation of powers, and he has done the same at his alma mater, Yale Law School.
Akhil Reed Amar, a liberal constitutional scholar at Yale, pointed to a quality rare among sitting judges: Kavanaugh's involvement in and command of contemporary legal scholarship. He is, Amar testified before the Senate, a "studious and open-minded conservative who likes listening to and engaging with moderate and liberal thinkers." Amar pronounced him by far the best candidate any Republican president could conceivably nominate, and one likely to serve as a moderating and bridge-building influence on the Court.
AFTER THE NOMINATION was announced, Yale Law Dean Heather Gerken issued an innocuous statement noting that if confirmed, Kavanaugh would be the fourth Yale Law grad currently on the Court. That statement, however, soon elicited a petition from hundreds of Yale law students, professors, and alumni claiming the nomination presented an "emergency... for our safety."
Subsequently, in mass demonstrations against the nomination, Yale law students accused the school of prioritizing "power and prestige over safety and wellness... that precludes many of us from flourishing in this space." In response, the Office of Student Affairs put out a plate of cookies to let students "know we are thinking of you." Only the puppies and play-doh provided to other "emotionally threatened" students at various campuses were absent. Thus did Yale law students, who have emerged victorious in what is arguably America's most rigorous admissions process, beclown themselves by slipping easily into the "snowflake" mode that has made today's university students into laughingstocks.
And in their hastily drafted petition "borking" Kavanaugh immediately after the announcement of his nomination, the Yale law students comported themselves only slightly better than the university students who assured an interviewer that Trump's nominee was both a racist and a sexist, despite the fact that as of the time of the interviews no nomination had even been made.
The "emergency" to which the students' petition referred was the possibility that Kavanaugh would form part of a five-justice majority to overrule Roe v. Wade. That's nonsense. Chief Justice John Roberts will never agree to overturn Roe, and of all those on President Trump's short-list for the current appointment, Kavanaugh was by far the most likely, based on judicial philosophy and temperament, to join Roberts in that position.
Significantly, the Yale students did not distinguish between the political outcome they want — universal legal abortion — and the Supreme Court decision creating that "right." It has been an open secret in legal academia for nearly 50 years that it would be hard to find a more poorly crafted judicial opinion, in terms of "neutral principles" of constitutional adjudication, than Justice Harry Blackmun's in Roe, with the possible exception of Justice Kennedy's in the more recent Obergefell decision (which the late Justice Scalia scathingly described as judicial reasoning on the level of a "fortune cookie"). There has been a cottage industry of liberal law professors trying to construct a coherent legal-constitutional rationale for the result in Roe v. Wade ever since the Court's decision was announced.
Those vocal Yale law students who convinced 31 professors to cancel classes so that they could express their pain and travel to Washington to demonstrate against Kavanaugh cared only about the result — his defeat — and not with anything they learned in law school about the Constitution's due process clauses or rules of evidence.
"BELIEVE WOMEN" is not an evidentiary rule, and for good reason. There is no reason to believe all women all the time, as a number of nationally known journalistic and legal scandals — and hundreds of campus disciplinary proceedings — demonstrate.
The same students who have worked on the Innocence Project — an organization committed to exonerating wrongly convicted people through the use of DNA testing — and related initiatives to exonerate wrongly convicted prisoners through Yale legal services, conveniently forgot everything they have ever learned about the vagaries of recollection, the unreliability of victim identification, and such phenomenon as implanted memories. (As an example of the latter, one woman confidently identified a TV personality as the burglar who broke into her home. It turned out that at the time of the burglary, she was watching him on television and had simply transplanted him into her memory of the event.)
Instead of normal rules of evidence, they offer irrebuttable Catch-22 tautologies. If the woman's story is filled with inconsistencies and changes numerous times, that is only more reason to believe her; after all, it just proves how traumatized she was.
Most disturbing to this alum of YLS was that no one wanted to discuss these issues. A conservative law student described to the New York Times a "culture of intimidation" of all those who did not call for Kavanaugh's scalp, and "the total land mine explosion" sure to follow any public support for Kavanaugh.
His complaint appeared in the Times below a photo of two Yale law students standing with right arms raised and fists clenched in people-power salutes, jaws fixed, unsmiling, eyes glaring. Looking at that photo, I couldn't help thinking of Robespierre, an early leader of the French Revolution's Reign of Terror, until the guillotine claimed him as well. No doubt he was also very smart.