Yale Law Takes Sides Against Kavanaugh

We can all agree that students, like all other people in this country, have a right to protest the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Most of us can also agree that Dr. Blasey Ford’s allegations against him, now joined by Deborah Ramirez’s disturbing story, warrant further inquiry before the votes by the Senate Judiciary Committee and then the full chamber.

But how should an institution like Yale Law School — dominated by faculty, students, and administrators who are deeply anti-Kavanaugh — behave in this situation? Complicating this question is the fact that the protests are not simply about the nominee but also reflect some imagined and poorly articulated sense of oppression at the school itself – this, in the most benignly indulgent environment these students will ever experience! The question is especially important for elite schools like Yale which play an outsized role in shaping the law’s content, legitimacy, and institutions. (As is often noted, every member of the current Court attended Harvard or Yale Law).

Institutional neutrality is an attractive stance in which Yale’s proudly liberal dean Heather Gerken first sought refuge. Shortly after President Trump announced Kavanaugh’s nomination, she released a public statement expressing the school’s pride that he had selected one of its most legally accomplished graduates (and an erstwhile teacher at the school), quoting several renowned liberal and centrist Yale professors’ praise of his judicial work. Gerken’s letter carefully avoided saying whether he should be confirmed, explicitly denying that it was an endorsement.

Kavanaugh’s furious enemies at Yale would have none of this. A long list of students, alumni, and even a few faculty promptly issued their own public statement expressing “shame in our alma mater,” savaging Kavanaugh as “an intellectually and morally bankrupt ideologue,” accusing Yale of supporting him in order to secure “its proximity to power and prestige,” and passionately insisting that “people will die if he is confirmed.” Gerken’s repeated denial that her statement was an endorsement evidently cut no ice with the protesters.

The problem with avowing neutrality is its question-begging character. Any effort to define neutrality without appealing to some non-neutral value is “mission impossible” (in Stanley Fish’s words) because one can only decide hard cases by appealing to some non-neutral principle. We all gussy up our decisive principles to appear neutral, but this is merely a rhetorical tactic. In today’s hyper-politicized environment, Gerken’s earnest profession of neutrality was probably the best she could do.

But Yale’s claim of neutrality – and by extension, those of other institutions that hesitate to openly take sides — are even less convincing given the criminal allegations against Kavanaugh, the enormous political stakes in his nomination, and the looming midterm elections. Dean Gerken, in convening a “town meeting” on the controversy, expressed pride in the students’ “engagement with these issues” and affirmed that she stood with them in their devotion to the rule of law. She also “sat with them” (metaphorically, at least) as black-clad students staged a sit-in protesting the nomination and demanding an investigation of the allegations. The school also allowed faculty to cancel or postpone classes to enable their students to go to Washington to protest. Some faculty promptly did so.

Is this neutrality? Exhorting Congress to thoroughly investigate serious allegations of sexual assault seems uncontroversial and unbiased. But we can also confidently predict the sequel. The anti-Kavanaugh forces will maintain that any investigation and hearing process not culminating in his defeat or withdrawal was necessarily a sham — a denial of due process, his accusers’ dignity, and women’s equality before the law. And if instead Kavanaugh loses, his supporters will likewise cry foul, insisting that he was done in by the non-racial, #Me Too equivalent of the “high tech lynching” that Clarence Thomas bitterly denounced.

Nor does it seem neutral for Yale professors to cancel or postpone classes so that students can protest in Washington. Having paid extraordinarily high tuition to attend Yale classes, many students who support Kavanaugh or do not ardently oppose him surely resent being forced to accommodate the overwhelmingly liberal faculty and students who want to bring him down.

This is hardly the first time that Yale Law has taken sides (always the liberal one, it seems) on a highly controversial public issue, failing to respect the views of its more conservative minority and occasionally even violating their rights. In 2005, Yale law professors overwhelmingly excoriated the Pentagon’s “don’t ask, don’t tell” policy on gays in the military — even though gay congressional leader Barney Frank supported it as the best compromise then politically possible for gays. The professors also joined a highly-publicized lawsuit challenging the constitutionality of the Solomon Amendment, a 1996 law guaranteeing military recruiters equal access to campus facilities and to students wishing to meet with them. Yale’s professors turned out to be wrong on the law: the Supreme Court unanimously rejected their position and protected student-military recruiter access. In another example of putting its liberal thumb on the scales, the university – while mouthing the usual pieties about campus diversity – notoriously failed to prevent leftist students from thuggishly bullying and stifling outspoken conservative voices on campus.

The solution to these campus disputes is quite straightforward: it requires only the courage by faculty and administrators to foster genuine, robust debate.  They should protect all speakers and protesters who do not disturb the peace or infringe on the rights of others. They should not allow faculty to impose burdens on some students to promote the political views or actions of others. Students who want to protest should do it on their own time and dime, not by burdening other classmates. More elusive but even more important, the grownups on campus should educate their students about the complexity of public issues rather than encouraging them in the simplistic ideologies, exclusive identities, and easy moralisms to which elite schools’ over-politicized, inexperienced students are increasingly drawn.

Peter H. Schuck

Peter H. Schuck

Peter H. Schuck is an emeritus professor at Yale Law School. His most recent book is, “One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us" (Princeton University Press).

6 thoughts on “Yale Law Takes Sides Against Kavanaugh

  1. Harvard GSE (Graduate School of Education) invited Betsy DeVos to speak and, though not met with protestors, was met with less than pleased students who left comments on the GSE facebook page. The event seem like it didn’t garner that much spectators and I bet a good number of faculty members weren’t all too pleased that she was a guest. I do believe that not inviting her would’ve been an extreme sign of the graduate school’s stance on her views and they probably were aware of this, so they invited her nonetheless.

  2. Time to stop taking elitist Supreme Court members from Harvard and Yale. How about someone who worked days and went to Law School at night.

  3. I’m no longer surprised by any actions or statements, no matter how extreme, of the Yale Law School ultra-left wing. (And yes, “liberal” is decidedly the wrong word.)

    The big surprise here is that a YLS professor has the courage to speak out against the extremism.

    Thank you, Professor Schuck, for this piece and for your terrific books, particularly the two most recent ones.

  4. Isn’t it past time to stop calling leftist ideologues “liberals”? There is nothing liberal about their theories and policies; on the contrary, most are clearly illiberal. For example, treating people as members of gender, race, sex, and ethnic categories rather than as individuals is highly illiberal. Setting aside merit in favour of race and sex as criteria for allocation of benefits. Suppressing speech that they do not agree with. All of these are illiberal. Let us call these illiberal ideologues “progressives,” “socialists,” and “communists,” according to the policies that they espouse. Let us restrict the term “liberal” to those who advocate classical liberal values.

  5. “Most of us can also agree that Dr. Blasey Ford’s allegations against him, now joined by Deborah Ramirez’s disturbing story, warrant further inquiry before the votes by the Senate Judiciary Committee and then the full chamber.”

    No — that is where the Rubicon was crossed…

    What the Democrats are doing now is really nothing more than a Kampus Kangaroo Kort on the national stage — right on down to pressuring the accused to give up in the face of increasingly unpleasant proceedings that will never end. Delay and obfuscation are standard tactics in academia, with a lot of accused students bullied into agreeing to go home. And that’s what we are seeing here, Kavanaugh being pressured to withdraw his nomination “because it’s just going to keep getting worse.”

    Yes, the allegations against him are serious — as are the allegations made by the Kangaroo Korts — the issue is if there is a scintilla of credibility in the allegations. All three accusers have serious credibility issues, alcohol was involved in all the incidents, and I’d not be surprised to learn that all three women have serious mental health issues. (Ford already has admitted that.)

    There is something called “Transference” where a woman who has been sexually abused as a child (usually by a family member) will, essentially, invent being raped in college even though she wasn’t. Sure she’ll pass a lie detector test, she honestly believes that it happened — it just didn’t. I know of one incident where a woman who had twice attempted suicide (with a knife) on campus in the prior year (that I knew of) sliced herself in her face and then claimed that a rapist had done it.

    This stuff happens — and we are not allowed to say that.

    We essentially are at the point of accepting spectral evidence and, respectfully, that is where Yale Law lost its soul. The law faculty, particularly those who despise everything that Kavanaugh stands for, ought to have been defending Kavanaugh’s procedural rights. That’s what the law is supposed to be about, and that’s the point that Alan Dershowitz is attempting to make. Yes, the conduct Professor Schuck discusses is truly outrageous (and sadly not unexpected) but the Rubicon was crossed far earlier.

    One other thought: It’s been said that the Massachusetts witchcraft hysteria ended when they accused (Royal) Governor Phipp’s own wife of being a witch — at which point he shut down the court. If this melts down as badly as it potentially could, particularly with regard to Julie Swetnick, it might help reign in the Kampus Kangaroo Korts….

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