Brett Kavanaugh: We spoke to the law professors trying to derail Trump's Supreme Court nominee

Law professors across America are waving a red flag towards Brett Kavanaugh's 'explicit adoption of a partisan political identity'

Chris Riotta
New York
@chrisriotta
Thursday 04 October 2018 19:24
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Brett Kavanaugh says opposition against him is political hit job fulled by 'anger against Trump' and 'revenge on behalf of Clintons'

Law professors across the United States have signed an open letter urging the Senate to reject Brett Kavanaugh's Supreme Court nomination ahead of the historic vote.

More than 1,700 law professors of various backgrounds and political ideologies co-signed the letter, published Wednesday in the New York Times, which read, "We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings … Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land."

The Independent interviewed numerous law professors who signed onto the letter Thursday, at least seven of whom agreed to speak on-the-record about the embattled Supreme Court nominee.

Several professors provided support for Christine Blasey Ford, the first woman to accuse Mr Kavanaugh of sexual assault, while others cast doubt on her story and resulting allegations brought on by additional accusers, including Deborah Ramirez and Julie Swetnick.

Still, the professors expressed deep concerns for Mr Kavanaugh’s "explicit adoption of a partisan political identity" and his apparent inability to remain neutral in the face of tough questioning during last week’s televised hearings.

The majority of professors pointed to a tense exchange between Mr Kavanaugh and Amy Kobluchar, a Minnesota Democrat who attempted to ask the federal judge about his drinking habits before he spun the line of questioning back onto her.

Cynthia Grant Bowman, a law professor at Cornell University, said the exchange displayed Mr Kavanaugh’s "obvious and deep anger at being challenged at all, especially by a woman."

She added, "If he can’t treat members of a co-equal branch of government well, how must he treat litigants?"

Martin Guggenheim, law professor at New York University, said the exchange "displayed a shocking lack of decorum" on the part of Mr Kavanaugh, while describing the moment as "unacceptable".

"Justices of the Supreme Court are the most important legal officers in the country," he added. "We ought to hold them to a standard of public behaviour that is consistent with that high office."

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That sentiment was echoed by Joshua Mitts, an associate professor of law at Columbia University, who said the exchange between Mr Kavanaugh and Ms Kobluchar stood out as one of the most troubling moments from the hearings.

"Many of my colleagues have said that if he had responded with contrition and said he didn't remember anything but asked for forgiveness, we would have been in a different place," he said. "I was put off by his tone, which is when his true colours were revealed."

None of the professors whom The Independent interviewed said Mr Kavanaugh’s conservative track record on the bench was a cause for their signing the letter. In fact, at least two said that a judge’s supposed political agenda wouldn't necessarily be a disqualifying factor for a Supreme Court nominee.

Sylvia Law, a professor at New York University and co-director of the Arthur Garfield Hays Civil Liberties program, has studied Mr Kavanaugh’s opinions from his tenure as a federal judge. He "has an obvious agenda," Ms Law said, "which is not disqualifying in and of itself, but the thing that’s disturbing in his opinions is the way he miscategorises facts when they’re not good for the gander."

"I do believe Dr Ford’s allegations, but I can understand someone saying, 'We don’t know this happened beyond a reasonable doubt.' I understand someone saying they don’t believe her," she continued. "But what I found most disturbing was the way Brett Kavanaugh lies. I wouldn't say that as confidently about the sexual assault accusations."

Protestors gather across Washington as the US Senate prepares to vote on Brett Kavanaugh's Supreme court nomination.

While the law professors varied in their belief of Dr Ford’s sexual assault allegations, several said the claims should be adequately reviewed by the FBI.

David Garland, a law professor at NYU, said he believed Dr Ford’s "allegations are sufficiently credible to warrant a proper investigation." He added that Mr Kavanaugh’s "explicit adoption of a partisan political identity" was among the most worrying aspects of the judge’s testimony.

The open letter arrived just days before a vote on the Supreme Court nomination, which Senate Majority Leader Mitch McConnell had promised to hold on Friday, after the FBI conducted a probe into Mr Kavanaugh and the sexual assault allegations against him.

Democratic lawmakers have slammed Donald Trump and the White House for allegedly limiting the scope of the background investigation, with Dianne Feinstein calling the probe "incomplete." Neither Dr Ford nor Mr Kavanaugh were reportedly interviewed by the federal agency as part of the latest investigation.

Whether or not it’s true that Mr Kavanaugh assaulted Dr Ford, the law professors seemed to be in unanimous agreement about the treatment the embattled nominee expressed towards the few women seated in front of him during his hearings.

"In his demeanour and his responses to specific questions from the senators, Judge Kavanaugh displayed contempt for the notion that due process should include a thorough and respectful investigation of Dr Blasey Ford’s allegations," said Anne Coughlin, professor at the University of Virginia School of Law. "It was horrifying to see him participate in a campaign to discredit women who come forward to complain about sexual assault."

For law professors like Sacha Coupet, an associate professor at Loyola University Chicago, the most disturbing aspect of Mr Kavanaugh’s hearings was his clear departure from the set of ideals many Americans hope a Supreme Court nominee will bestow on the bench.

“I’ve been long critical of assumptions that judges are not people … and while I’m critical of that, I still see it as an aspirational model, that what we would like to believe is that judges are approaching judicial decision making with the kind of emotional and intellectual detachment that would allow them to exercise really the highest level of impartiality without being subjected to their own grievances or their own strongly held personal beliefs,” she said.

She added, “When you occupy that seat, particularly a seat on the highest court of the land, we ask that you have the ability to control your temper, that you do, in a sense, exercise all of the preconceived notions of what we think judging involves, the impartiality, neutrality, calm. There are aspects of demeanour and temperament that you must demonstrate an ability to keep those in check in order to carry out this incredibly important task."

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