Should Law Professors Sign Letters on Public Issues if They Don't Fully Agree with the Letters?

I don't sign such letters unless I fully agree with every assertion made.

|The Volokh Conspiracy |

2,500 or so law professors signed a letter, published in the New York Times, stating that Brett Kavanaugh should not be confirmed to the Supreme Court because his performance at the Ford-Kavanaugh hearing showed that he lacks the requisite judicial temperament.

The letter's attack on Kavanaugh's tempermament starts with this: "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."

Whatever one thinks of Kavanaugh in general, or his temperament more specifically, or his temperament during his testimony even more specifically, this line of attack is absurd. The "question at issue" was whether Kavanaugh was a violent sexual predator. He completely denied it. If Kavanaugh was telling the truth, there was no reason for him to have a commitment to any further "inquiry," judicious or not, nor to be open to a "search for accuracy," because he already knew that the "issue at hand" was malicious slander. If he was lying, then the issue was his lying, not his temperament.

I know and respect some of the folks who signed this letter, and, to the extent that they read the letter with any care, I have to think that this language struck at least some of them as silly for the reasons stated above. If so, and they signed the letter anyway, I presume it was because this was "the" letter regarding Kavanaugh's temperament that was being circulated, and circulated in time to potentially affect the vote on Kavanaugh (unlikely, especially because I don't believe that anyone who signed the letter publicly opposing Kavanaugh had publicly supported him before the Ford allegations) or to at least to make a public show of their opposition to Kavanaugh, either because of temperament or other issues.

My own policy, as it's evolved over the years, is that I don't sign any letters, briefs, op-eds, co-authored articles, etc, unless I fully agree with them. If one is lending your name to a public statement, one is endorsing all of it, and giving whatever credibility one's reputation can confer on the text. In fact, well before the Ford allegations arose, I was asked to sign a pro-Kavanaugh letter. I declined because while I supported the general thrust of the letter, some representations were made in the letter that I didn't feel I could endorse, largely because I wasn't sufficiently familiar with Kavanaugh judicial record.

NEXT: The Senate Votes to Confirm Brett Kavanaugh

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  1. Some decades ago, if I remember the account correctly, Bertrand Russell was circulating one of his peace petitions to various prominent people. Some of the signatories wanted certain clarifications in the petition’s language, which the other signatories were OK with, except Albert Einstein, who had died. So when Russell’s committee released the petition, they included an explanation about what parts Einstein had endorsed and what parts he couldn’t be consulted on.

  2. As more information came forward, the less credible the allegation became –
    As more allegations came forward, each separate allegation became part of coordinated attack.
    In the face of conflicting information that not only didnt corroborate the allegation, demonstrating the allegation[s] were less than credible, yet the Democrats persisted in provoking the judge.

    I have seen more than one trlal court judge have his ire raised when continued to present dubious stories to the judge.

    Every democrat senator except 3 voted against Gorsuch, The only difference in the opposition was the optics.

  3. 1. Your main point seems correct. Unless you agree with each assertion, do not sign. (Which seems reasonable, since people may later–fairly!!–say about you, “David signed this letter. This letter made 4 points. Therefore David agrees (or, agreed at the time) with all 4.” Your response (to not sign) was perfectly valid.

    2. I disagree with the argument that his temperament meant nothing. If he were a brand-new nominee (ie, never been a judge before), I think it would have been hugely important…to me, anyway. A suggestion of how he would act on the bench. But in his case; we have a 12-year history (how did K actually behave on the-bench) to refer to, and that outweighs his dreadful performance at his testimony 2 Thursdays ago.

    3. His repeated perjury was the biggest issue for me (since we all knew that a 30 year old accusation of sexual misconduct would never be proved or disproved definitively), while he clearly seemed to lie about a bunch of tangential things. As you note, his lack of honesty is a completely different issue than his temperament.

    1. santamonica811, for the life of me, I can not understand why anyone buys the notion that Ford’s charge could not have been proved. I get that for the rest of time, we will hear that completely uncorroborated charges were made against Kavanaugh, and for the rest of time, that is going to be chalk squeaking on a blackboard to me.

      Here is a scenario which might reasonably have led to corroboration beyond a reasonable doubt, had it been investigated:

      The FBI, instead of being constrained by the White House, is directed to conduct an investigation using the standards of a criminal investigation. The justification for that being not that the supposed attack was a federal crime, but that the circumstances have given rise to allegations of federal perjury.

      Ford has testified that she remembered the layout of the house where she said the attack took place, and that she could draw a floor plan if asked to do so. Have the FBI request her floor plan.

      Then, on the assumption that the attack would reasonably have been expected to take place in a home in some way connected to one of the people named by Ford, locate those premises. Compare the floor plans.

      If there is a match, check Kavanaugh’s calendars, to see if any show an entry putting him at that location with others named by Ford, in that time frame.

      If that’s a match, proceed to immunize witnesses, and see what they say.

      1. (continued)

        It’s worth noting that DC-area media have already done the floor-plan part of that investigation, and turned up a likely match to Ford’s layout description?that being at the then-home of Timmy Gaudette. I was astonished that news of that never made a wider appearance. Maybe there was something to impeach what the media found, but I never heard about it.

      2. (continued)

        One of the more disturbing possibilities for the future would be completion of some similar investigation?probably under a Democratic administration?yielding unshakable corroboration. The prospect of the wrench to SCOTUS legitimacy which that would administer is disturbing enough that I am surprised that even today’s Republicans were willing to risk it. Mind you, not surprised that most of them would risk it, but surprised that some few of them wouldn’t break ranks on the side of caution, and call for another nominee.

        1. A Thorough investigation was blocked by her attorneys by
          1) trying to dictate the terms of the investigation
          2) withholding documents
          3) refusing to turn over the therapists notes, virtually the only thing that would corroborate the allegation – at least shed some light on how her memory was recovered.

          Any suggestions on how to conduct a serious and complete investigation when the accuser is not cooperating,

          1. Joe_dallas, the defensive position of the Trump administration has been that they delivered the investigation the Senate specified?meaning, as everybody understands?what the Senate committee majority specified, without consultation with, or even disclosure to, the minority. And now you suggest that somehow, the minority blocked a thorough investigation? That is a peculiar assertion.

            And of course your assertion in reply to an explanation to the contrary?that the therapist’s notes are “virtually the only thing that would corroborate the allegation”?is logical nonsense. If you cared to rebut in some way the scenario I suggested, you would have a chance to make sense. Leaving out for the sake of discussion all the other things you would like to see (and which I would almost certainly support seeing), what’s wrong with an investigation in the form I suggested?

      3. Any additional investigating has to ignore that Ford’s BFF (Keyser) who Ford testified was at the party said she did not know Kavanaugh and never went to a party like Ford described. Ford went on to throw Keyser under the bus and claim she was trying to recover from using cheap drugs which was why she could not remember the party. To make matters worse the last FBI investigation uncovered emails confirming Keyser’s claim that McLean (the former FBI agent who is also a Ford friend) and other Democrats pressured Keyser to support Ford’s claims.

        I have no doubts Ford suffers from mental problems. I also have no doubts the Democrats are using every trick in the book to dis Kavanaugh. But I seriously doubt there is any way to unearth new evidence to support Ford’s claims.

        1. ragebot, I just suggested a specific method to do what you say can’t be done. You chose not to mention it, or to rebut it in any way. You just changed the subject.

          That kind of non-response has been so widespread that I don’t think there is much room to suppose many of Kavanaugh’s supporters sincerely believe he told the truth. They may believe it is unfair to hold the truth against him, but not want to admit that.

          1. Your specific method is absurd and far reaching. Reading it, I was almost surprised to failed in include a medium to search for witnesses. Seriously, be honest that all you wanted was to drag the hearings out until after the midterms.

            When Ford cited witnesses, including her dear friend, and every single one said they had no memory of such a thing. She changed the year range 3 times (convenient since the first date range Kavanagh wasn’t around so pretty much had an alibi.

            No reasonable prosecutor would continue after every since piece of evidence Ford claimed fell through. Wow, she “remembers” the layout of the house! Except, even that changed during testimony as the bathrooms moved about.

            No, the entire disgusting affair was an attempt to get Kavanagh to withdraw rather than endure it. Nothing more, nothing less.

      4. The only limitation in the FBI investigation was that they were to interview individuals with FIRST-HAND knowledge of the events that were alleged to determine the existence of ANY corroboration.

        The vast majority of media and other accounts used definitions of corroboration and substantiation that included second and third hearsay from the accuser. The Ford letter referred to her best friend as a male when she knows she is a female. All of the individuals that were named as witnesses failed to corroborate or confirm the allegations.

        We have reached a new low in confirmation when unsubstantiated assertions can be the basis for denying confirmation. This new low was what Kavanaugh referenced as “what comes around goes around”. Oh what lows Senator Ted Kennedy has rendered to the confirmation process for SCOTUS.

        1. floridalegal, things direct witnesses say contemporaneously to others can of course provide powerful corroboration of the direct witnesses’ testimony. If someone else can swear that the alleged direct witness said then?before there was any investigation?what that same witness reports to investigators now, that is not evidence to be dismissed without proof to the contrary.

          The whole point of further investigation, in search of corroboration, is to find examples of exactly the kinds of evidence which you concede were ruled out of bounds. It was a sham investigation. It was intended to provide political cover for politicians accustomed to presume most voters are suckers. Not you? Then please stop acting as if you were.

          1. Go away, you are either an idiot or a fraud.

      5. This is inane. Ford can remember the layout of a house well enough to draw it?but She cannot remember anything else?

        That aside, memory is not photographic. Her recall of the floor plan will not be pristine?it will be made foggy by having been in many other houses over the years with similar floor plans.

        In fact, I could probably sketch the floor plan of that house and come pretty darn close to nailing it. It is obviously a tri-level?very popular back in the day. I have been in dozens over the years?including several in the wealthier DC suburbs. They have modest variances?but they are mostly cookie-cutter. I think I could draw the layout of my then-boyfriend’s tri-level in Annandale from back in 1980, but my “memory” of it has certainly been reinforced and rewritten by my numerous experiences in almost identical homes.

        Her ability to sketch the floor plan of one of the most common home designs in 1970s America is not convincing evidence.

        1. LadyTheo, not convincing evidence? I disagree. Even if things are as you say, and it is one of the commoner floor plans in the D.C. area, it will be, by far, a tiny plurality of all the floor plans. And the only reason to presume she might know which of the unlimited number of floor plans to choose, is to presume she knew which place it was?something which would be impossible on the basis of all the “no corroboration,” claims bruited in these threads.

          Your objection proves the opposite of what you assert. Consider your own example, of the previous boyfriend?you know it now because your were there then. Which is the point of proof to be demonstrated in Ford’s case?that she was in fact there with the others. Had you never visited the person you mention at his home, you would of course not have had any reasonable basis for drawing a floor plan of it, no matter what you might know about common D.C. area floor plans.

          Remember, with the calendar, Kavanaugh had already put himself and Judge in Gaudette’s home. If Ford recalls the floor plan there, she has put herself there as well. With that, the unqualified assertion that these folks were never together is shown to be false, and a reasonable basis for a charge of perjury.

          1. Remember, with the calendar, Kavanaugh had already put himself and Judge in Gaudette’s home. If Ford recalls the floor plan there, she has put herself there as well. With that, the unqualified assertion that these folks were never together is shown to be false, and a reasonable basis for a charge of perjury.

            Uh, you may not be aware, but Ford has already disclaimed the idea that she was attacked on July 1.

            1. I had not been aware of that. Can you point me to the basis for the assertion?

                1. I wasn’t aware of that. It’s interesting, and potentially significant. I wonder if Ford considered the possibility that the attendees mentioned on BK’s calendar who she believes she’d have remembered being there didn’t arrive until after her early departure.

      6. Let’s assume that she drew a floor plan of someone’s house. How exactly would that prove beyond a reasonable doubt that she was attacked, let alone that Kavanaugh was the one who attacked her?

        1. It would not by itself prove the attack. It would prove denials of ever knowing her, or of being together with her in that location, were false as a matter of fact. It would raise the question of why deny something not in itself blameworthy. It would overturn every assertion that independent corroboration does not exist, and that nobody supports what she says. It would put the defense back on the grounds of failed memory alone, failed memory about something otherwise conceded as fact.

          It would set the stage for further detailed examination of additional parties, and what they might know or have been told at the time. It would throw into harsher light all the stuff about drinking, the lies about sex, Kavanaugh’s undeniable expressions intended to humiliate women, and treat them as objects of sexual conquest. It would justify complete investigation of the alleged Yale incident. It would, in short, mobilize circumstantial evidence in support of a theory that non-circumstantial evidence reporting an attack occurred was valid evidence.

          And of course there is the matter of the counter-theory being mounted, that Ford was attacked, but not by Kavanaugh?and she is mistaken about the identity of her attacker. Especially given corroboration of the alleged scene, the absurdity of that counter-theory is exposed by asking on what basis she would remember Judge as an attacker, except in connection with Kavanaugh. Really? It wasn’t Kavanaugh and Judge? It was somebody else and Judge?

          1. “It would not by itself prove the attack. It would prove denials of ever knowing her, or of being together with her in that location, were false as a matter of fact.”

            No it would not. Given the fact that the house identified is was not Kavanaugh’s home, it does absolutely nothing to prove or even suggest that Kavanaugh and Ford were ever there at the same time.

          2. It would prove denials of ever knowing her, or of being together with her in that location, were false as a matter of fact.

            But there were no such denials. Here’s what he actually testified: “She and I did not travel in the same social circles. It is possible that we met at some point at some events, although I do not recall that.”

      7. “The FBI, instead of being constrained by the White House, is directed to conduct an investigation using the standards of a criminal investigation. The justification for that being not that the supposed attack was a federal crime, but that the circumstances have given rise to allegations of federal perjury.”

        Your idea is to investigate Ford for committing perjury? That’s an idea so bad I’m surprised Trump didn’t come up with it.

      8. You do realize that this is reality and not some TV show, right?

        Compare floorplan layouts? Do you know how many floorplans there are? Even if Ford could draw a complete and accurate floorplan (unlikely). The FBI doesn’t have a comprehensive list of floorplans, much less have them listed to each house. Even if you could do it, NONE of that would hold up in court. The false positive and false negative rate is insane. You are comparing a generic drawing to every possible match. Of COURSE you will get hits just due to the law of large numbers. Any FBI agent who suggests it should be fired immediately for incompetence.

        There are no contemporaneous records to go by except for Kavanaugh’s calendar. You cannot get a date. Even if you had a party, you cannot even confirm that Ford was there. There is literally nothing to check on this. Again, due to the vague requirements, you can certain state that there was some date that it might have happened, but it would be immediately dismissed from court due to the sheer number of ways it could be a false positive.

        Finally, even if you managed these herculean tasks and somehow proved that the party happened, that still doesn’t answer the question of what actually happened between Kavanaugh and Ford. To compare, even with assaults that occurred at normal parties reported days afterward, the case often ends in a stalemate due to the actual event being unobserved.

        1. He seriously thinks only one house in the area matches that floor plan.

          And how does this Pinky and the Brain plan force the current homeowners to let the FBI in?

          Imagine trying to get a search warrant.

  4. I read the petition, and came to the conclusion the signers questioned Kavanaugh’s judicial temperament, based on what they had seen at the hearing. Bernstein seems to suggest they shouldn’t have concluded what they did conclude. But his argument seems to be that petitioners should have decided to sign, or not, on the basis of what Bernstein concludes.

    More generally, if Kavanaugh on the bench turns out to be the partisan movement conservative disclosed by Kavanaugh at the hearings, then that petition is going to loom larger and larger in both history and politics with every Kavanaugh vote.

    1. Ah, but there are patisan’s on the bench now …RBG comes to mind immediately. He is not disqualified for having opinions, but rather for making judgements based on prejudice rather than the facts and the law. He has been an appellate judge for 12 years. Surely this would have been observable from his record.

      This is yet another piece of BS from SL. You would be just fine with Kavanaugh being a partisan, so long as he was a progressive one.

  5. For fun I scanned through social media today for all the people having a temper tantrum who probably didn’t know what a Supreme Court justice was before Trump came into office.

  6. Did anyone notice the time line changed dramatically from the initial therapist notes, and the statements to the WP from the late teens/mid 80’s to the final version early 80’s, / 1982/ age 15.

    That is a 2-3 year difference in the time line between the various versions.

    The 1982 time line is the only one that fits being able to tie in Kavanaugh which was her 4th version of the time line.

    Did anyone notice that the final story included the casual drinking of one beer. Very few 15 year girls will even drink a beer, much less be a casual event, due to the awful taste of beer at that age. The casual drinking of the beer places the time frame in her later teens, not at age 15.

    I am not questioning that she was assaulted, just that the time line presented in the final version doesnt fit .

    1. Prior to this controversy, I didn’t know what “boof” meant, and I didn’t know what “devil’s triangle” meant, but I certainly knew what One Beer meant.

      1. Indeed, “One Beer” is the amount of beer you tell the Police officer you have had (since, even in your current state, you realize you probably smell like beer) rather than providing the more accurate description: “One Beer Keg”.

  7. Is there anything in the world less persuasive than a letter signed by 2500 law professors? It probably wasn’t mendacious enough to garner 3,000 signatures.

  8. Damn!
    I thought this was whether he should be confirmed to the Supreme Court. Not stacking the deck with cherry-picked “facts.”
    We know he’s a liar, with an atrocious partisan bias, and the “investigation” which was not allowed to investigate his drunkenness, which the President lied about (again)..

    The drinking matters because he could have committed the assault, but honestly have no memory of it. Quite common at that age. He did admit doing some things he should not have, while drinking. And REFUSED — twice — to deny that he was the blackout drunk in Mark Judge’s book, named “Bart O’Kavanaugh.” (wink,wink)

    We’ve most likely seen a flagrant abuse of power. The goddamn Dems were as bad as the Reps were with Garland — but with more faux rage. We libertarians see these offsetting abuses, being neither right nor left.
    Left – Right = Zero
    But pure, naked power rules. For now.

    1. If the Dems want to open an investigation on Kavanaugh’s drinking they should explicitly open an investigation on the drinking. No open ended fishing expeditions.

      1. I doubt the Democrats would conduct an investigation of drinking.

        Perjury, though . . .

        1. Such as Fear of Flying? Coaching on Polygraphs? Enclosed spaces and Oceanography? Two front doors (for escaping someone presumably at the front of the house, instead of using a side or back door, and not for leasing out space for a home-based Therapy business). Or how about subborning perjury and witness tampering, such as Leyland Keyser suggests. Yes, I say we investigate…

    2. Can you cite any partisan opinions out of the 300 or so he has written in the DC circuit. I am sure one of those will demonstrate the partisanship he displayed

    3. And REFUSED — twice — to deny that he was the blackout drunk in Mark Judge’s book, named “Bart O’Kavanaugh.”

      Judge’s book did not say that his character O’Kavanaugh was a blackout drunk. (It did say that the character once passed out, which is an entirely different concept than blackout.)

      And I think what you mean is “refused to admit that he was the character in Judge’s book,” which is sensible since he’s not a mindreader. What he said, which I would have prepped any deponent to say if asked a question like that, is “You’ll have to ask him.”

    4. Is there evidence Kavanaugh read any of Mark Judge’s books or discussed them with him.

      Meanwhile at Amazon, Mark Gauvreau Judge, “Wasted: Tales of a GenX Drunk”, Hazelden, 1 May 1997.
      Out of Print — Limited Availability. No used copies listed for sale 19 Sep BUT 16 Amazon reviews by 19 Sep 2018.
      One ***** star review 7 Nov 1999 by “A customer” for its tale of overcoming alcoholism.
      Starting 16 Sep 2018, by 19 Sep fifteen mostly * star (lowest) critical reviews, some admitting they have not read the book outside the current news reports.
      By 22 Sep one used copy was posted for sale at $150.00.
      By 8 Oct twenty-three * star critical reviews by people who ([sarcasm] I totally believe [/sarcasm]) managed to find and read copies of an out-of-print book with no used copies currently listed.

      Would YOU deny be a character in a classmate’s creative non-fiction memoir of his high school days fifteen years after, and risk a fall into the perjury trap?

      1. … deny being a …

  9. Is the answer different for law professors than for, say, professors of Comparative Literature or German or Philosophy?

    1. I was thinking about that and I happened across this interesting graph for the ratio between Dem and Republican professors.

      https://www.nas.org/images/articles/Figure1.png

      1. Yeah, I can’t say I’m surprised. But I was thinking of the letter by Judith Butler, et al, claiming that famous lit theory professors shouldn’t be punished for sexual harassment.

        1. Judith Butler’s reason why Avital Ronell shouldn’t be punished for sexual harassment had nothing to do with her being famous and everything to do with her being a feminist.

  10. If Kavanaugh was telling the truth, there was no reason for him to have a commitment to any further “inquiry,” judicious or not, nor to be open to a “search for accuracy,”

    Well, he complained a lot about his reputation being damaged. If he was innocent wouldn’t a thorough investigation, rather than a partisan joke passed off as one, help repair some of that damage?

    IMO he made the already ample and justified doubts about his truthfulness worse, not better.

    1. If he was innocent wouldn’t a thorough investigation help repair some of that damage?
      >>>>>>>>>>

      If I accused you of child molestation without any evidence will you help me in my efforts to keep this case open and in the news for years on end while I dig up random things for new headlines in the NYT and CNN like you walking your niece home that I’m just going to assume was another victim or more email accusations? After all the longer it goes on the more this will repair your reputation right?

      1. ^^^^^^ THIS!!

  11. I know and respect some of the folks who signed this letter, and, to the extent that they read the letter with any care, I have to think that this language struck at least some of them as silly for the reasons stated above. If so, and they signed the letter anyway, I presume it was because this was “the” letter regarding Kavanaugh’s temperament that was being circulated, and circulated in time to potentially affect the vote on Kavanaugh (unlikely, especially because I don’t beleive that anyone who signed the letter publicly opposing Kavanaugh had publicly supported him before the Ford allegations) or to at least to make a public show of their opposition to Kavanaugh, either because of temperament or other issues

    You “have to think.” You “presume.” So you are criticizing the signatories because of your own assumptions about them, as well as a not-very-convincing argument about further inquiry, (not “inquiry.” Your use of quotes here and “search for accuracy” betrays your biases.)

    1. If the Senate subpoenaed me to testify about someone’s allegations of my links to the mafia, no, I would not welcome further inquiry nor would I believe that I was involved in a search for accuracy, because I have no ties to the mafia. And if all the Republicans, or all the Democrats, had for political reasons already acted as if they knew I did indeed have such ties, I would be under no illusion that they were interested in accuracy, either. The professor letter’s statement that I quoted only makes sense if one believes that Kavanaugh himself isn’t sure of the truth. If that’s so, then his problem is perjury, not temperament.

    2. Agreed, a fundamental flaw of this is that it criticizes people’s thoughts without actually getting those thoughts.

      Without quotes, this is useless.

  12. I’m certainly glad Bernstein wasnt considered as a possible nominee to the Court, where compromise and collegiality are essential to gaining the signatures of at least five Justices. He would be writing nothing but concurrences and dissents, where he could say what he wanted and not have to sign-on to anything that accommodated the different views of other people.

    I envision a typical concurrence being “I concur with the majority, but write separately to provide a list of the words and sentences in their opinion that I don’t support.”

    And, as a law professor, I would think you would be keenly aware of the fact that parties generally differ over what they view as the relevant issue in a given case, or context. Rather then seeking to understand the view of your colleagues, and how your understanding of the primary issue differs, you’re just arguing in favor of a different issue and calling others “absurd.” Very collegial of you.

    1. The letter suggests that Kavanaugh should have had the following attitude: “These Senators are not just accusing me of being a violent sexual predator, they have already decided that it’s true, at least for political purposes. I know it’s false, and thus they are slandering me for political reasons, but I welcome their questions about my being a violent sexual predator anyway, in the name of judicious inquiry.” That is, in fact, ridiculous, as no normal person would have that attitude. If the letter instead limited its argument to “staying calm under extreme pressure” and “not giving the appearance of partisanship, even if in your mind you’ve been severely provoked,” then I would say the letter was reasonable, if debatable.

      1. I read the letter and I did not see the “suggestion” that you claim it has. Rather, I see that you read it and conceived in your mind an idea of how a person with self-command might have acted, decided that this idea was absurd, and then called the letter absurd. All you have done in your comment is call yourself ridiculous, since it is your conception of self-command that you are ridiculing. The letter says nothing that you reference in quotes; that is all what you imagine from reading it.

        You imagine what you view to be an absurd possibility, then claim it is absurd, and state that no “normal person” could act in this absurd way. Shocker. But the standard of “normal” is not what everyone believes ideal in a Supreme Court Justice. When I watched his confirmation hearings I was not looking for what a “normal” person would know about the law, the role of a judge, and American jurisprudence. I was not looking for the him to act like a “normal” person, I was looking for something greater. I think you probably were too, at least in that context. But then, in this context, normal because the standard by which you compare him.

        I’m going to recommend that you reread your Adam Smith, particularly Part VI of The Theory of Moral Sentiments. Or, at least read Section III of Part Vi, “On Self-Command.”

        1. “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.”

          No reasonable person is “committed to judicious inquiry” by people who have already made up their minds (at least for public consumption) regarding what that person “knows” to be character assassination.

    2. The letter suggests that Kavanaugh should have had the following attitude: “These Senators are not just accusing me of being a violent sexual predator, they have already decided that it’s true, at least for political purposes. I know it’s false, and thus they are slandering me for political reasons, but I welcome their questions about my being a violent sexual predator anyway, in the name of judicious inquiry.” That is, in fact, ridiculous, as no normal person would have that attitude. If the letter instead limited its argument to “staying calm under extreme pressure” and “not giving the appearance of partisanship, even if in your mind you’ve been severely provoked,” then I would say the letter was reasonable, if debatable.

  13. Lets call a judge biased and unsuited to hear any of my clients cases
    Lets also call Roberts & Alito * Thomas & Gorsuch biased

    they should all recuse

    Great for the attorney since he now has the panel he likes

    impunge the integrity of the judge – smart stategy

  14. Whatever one thinks of Kavanaugh in general, or his temperament more specifically, or his temperament during his testimony even more specifically, this line of attack is absurd. The “question at issue” was whether Kavanaugh was a violent sexual predator. He completely denied it. If Kavanaugh was telling the truth, there was no reason for him to have a commitment to any further “inquiry,” judicious or not, nor to be open to a “search for accuracy,” because he already knew that the “issue at hand” was malicious slander. If he was lying, then the issue was his lying, not his temperament.

    Well, not to be argumentative, but if he was lying, then the issue was his attempted raping, not his lying.

  15. You should stop respecting the people you know who signed that letter. Or respect them much, much less.

    When you need their help with your own witch trial, they’ll be right there, erecting the stake for you to be burned.

  16. If you sign your name, you take responsibility for all the contents unless you have a written explicit disclaimer.
    The same is true for submissions to peer reviewed journals.

  17. I’m not a fan of signing statement even when done by the POTUS.

    In the context of these, letters, though, no asterisks or disclaimers are going to be appended. If you sign it, you adopt it as yours, and the words must be deemed to have come from your own mouth ? else the whole exercise is a farce and a scam.

    You have the right of it, Prof. Bernstein.

  18. The head line might have read “Fewer than 1 in 6 Law Professors Sign Petition Against Kavanaugh” – but it didn’t. It might have read “Law Professors Who Opposed Kavanaugh Appointment before Ford Accusations Sign Petition After TV Testimony” – but it didn’tB

    It should have read “The News Intends to Shape Public Opinion Rather than Inform Public Opinion – Any Way, Any How”

  19. Bernstein states: “If Kavanaugh was telling the truth, there was no reason for him to have a commitment to any further ‘inquiry,’ judicious or not, nor to be open to a ‘search for accuracy,’ because he already knew that the ‘issue at hand’ was malicious slander.” I disagree. Even if Kavanaugh knew he was telling the truth, he could not know that Ford’s testimony was slander — slander is a deliberate lie, and for all he knew Ford believed she was telling the truth. It’s certainly not unheard-of for eyewitness identification testimony to be mistaken, and if he’s any kind of a lawyer he should know that. And even if he somehow “knew” Ford was lying, there was no reason for him to believe that the Senators on the committee knew that was the case — her testimony, true or false, sounded highly credible. Their job was to weigh the evidence as impartial fact-finders in a search for accuracy, and his job as a witness was to recognize that they did not know the truth, and to try to explain to them why his accuser was either lying or mistaken. That is the essence of the judicial process.

    1. Problems with your argument. This wasn’t a judicial process. The committee was not acting as impartial fact finders. Senators were being quoted as stating that he was guilty before the hearing was even begun.

      In that light, the hearing was a mockery of his profession by people who were obviously biased and had expressly made up their minds. He was under no obligation to play nice and by the rules when these same rules had been repeatedly and explicitly broken by the other side.

      So, he took a page from Trump’s playbook and told them exactly what he thought of them. To tell the truth, I would have preferred him to remain calmer. However, I cannot demand that much more of a Justice than a Senator.

      1. I agree with you that neither the pro-Kavanaugh Senators nor the anti-Kavanaugh Senators should have prejudged the testimony of Ford and Kavanaugh, and Senators on both sides should have refrained from making statements expressing a view on the truth of Ford’s allegations before the hearing. But while some Senators on each side did so, I believe that most did not. The fact that some of them may have behaved more as politicians than as fact-finders does not completely undermine the process, nor does it demonstrate that “the issue at hand was malicious slander,” as Bernstein claims. And I guess I expect more of a nominee for a judicial office than I do of a politician.

  20. These letters are an “appeal to authority” logical fallacy writ large.

  21. I think your policy is a good one. That said, I don’t agree with your reading of the letter and why you take issue with it.

  22. This letter is about how they feelz.

    No more. No less.

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