Gabriella Demczuk / The New York Times

Judge Brett M. Kavanaugh testifies in front of the Senate Judiciary Committee on Sept. 27, 2018 after he was accused by Dr. Christine Blasey Ford of sexually assaulting her.

October 3, 2018

Law School Professors Weigh in on Kavanaugh Hearing With The Sun

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Today, a letter signed by more than 1,700 law professors across the country will be sent to the Senate urging it not to confirm Supreme Court nominee Brett Kavanaugh following allegations that he sexually assaulted Dr. Christine Blasey Ford when they were both teenagers. Fifteen of the signatures on the currently growing list belong to professors in Cornell’s Law School.

In a hearing on Sept. 27, Ford — the first woman to accuse Kavanaugh of sexual misconduct — said that during a summer party in their high school years, he pushed her onto a bed, groped her against her will and covered her mouth with his hand as his friend, Mark Judge, witnessed the assault. In a fiery opening statement, Kavanaugh asserted that he denied any sexual interactions with Ford and stated that he has no recollection of the party.

President Donald Trump authorized the FBI to launch a supplemental background check into Kavanaugh on Sept. 28 so long as the investigation satisfies Senate Republicans. News outlets like The New York Times and Washington Post have reported the investigation could end on Wednesday.

Since Dr. Ford’s testimony garnered international attention, universities like Yale, where Kavanaugh completed his undergraduate and law school years, have become platforms for professors and students to debate whether someone under such social and judicial scrutiny is fit for office. At Yale, over 400 people protested his confirmation on Sept. 24, according to The Yale Daily News. On Monday night, Harvard sent an email to law students confirming that Kavanaugh would not be returning to teach in the winter.

At Cornell, professors who signed the letter to the Senate are Gregory S. Alexander, Cynthia Grant Bowman, Elizabeth Brundige, Sherry Colb, Angela Cornell, Michael C. Dorf, Rachel Goldberg, James Grimmelmann, Karen Levy, Odette Lienau, Andrea J. Mooney, Saule T. Omarova, Aziz Rana, Chantal Thomas and Gerald Torres.

The Sun reached out to nine professors in the law school and government department and received comment from four, one of whom signed the letter. 

The following transcripts have been lightly edited for clarity.

Prof. Michael Dorf, Robert S. Stevens Professor of Law

Both Dorf and Kavanaugh clerked for Supreme Court Justice Anthony Kennedy. Dorf clerked 2 years prior to Kavanaugh and is one of the signatories on the letter being sent to the Senate.

The Sun: You previously told the New York Times that the controversial confirmation process may make Kavanaugh more skeptical of arguments that are either advanced by Democrats or in favor of expanding congressional power. What are some other cases where Kavanaugh’s contentious confirmation process could influence his ruling as a supreme court justice? (For example, legal cases regarding the media or sexual assault?)

Michael Dorf: To be clear, my main point is that one cannot trace a straight line between the confirmation experience and the decision of particular cases. That’s especially true with respect to Kavanaugh, whose views were already very conservative. Because I believe that the phenomenon I’m describing will likely operate unconsciously, I think it’s actually somewhat less likely to show up in cases that directly involve charges of the sort that Kavanaugh has faced as a nominee, where he would be very much aware of the issue.

The Sun: Kavanaugh has been accused of lying under oath during his testimony. If the FBI finds these accusations to be true, do you think there is a realistic chance he will be convicted of perjury?

MD: I cannot imagine that the Trump Justice Department would seek an indictment against Kavanaugh for perjury. However, the statute of limitations for most federal crimes (including perjury) is five years, so if a Democrat becomes president in 2021, it is possible that his or her administration could seek such an indictment. A perjury conviction requires that one have lied about a “material” fact. Some of Kavanaugh’s pretty clearly false statements concern matters that are arguably tangential and thus not material, such as the meaning of various terms in his high school yearbook.

Dorf has shared more of his thoughts on his blog.

Prof. Jeffrey Rachlinski, Henry Allen Mark Professor of Law

The Sun: From your perspective, will the intense public scrutiny that Kavanaugh has been subjected to affect his work as a judge? Is his emotional performance at the Supreme Court hearing typical of other supreme court nominees frustrated by a rocky confirmation process?

Jeffrey Rachlinski: Every bit of research ever done on the subject concludes that judges are human beings with emotional reactions that influence how they decide cases. This process clearly has ignited a passionate reaction in Judge Kavanaugh that will doubtless influence him for the rest of his life.  Research on how emotions influences judges suggest that he will be unable to set this experience aside when deciding cases involving relevant subjects or parties who are closely align with those he has today treated as personal enemies.

Assistant Professor David Bateman, government

The Sun: There are some concerns that the accusations are infringing on the rule of law by judging Kavanaugh in a people’s court. Are these concerns well-founded?

David BatemanThe complaint that Kavanaugh is being judged in the court of “public opinion” is deeply uninformed, and is entirely backward. He is to be judged by public opinion — and rightly so since he is not on criminal or civil trial but is being nominated to serve on the SC. There is no question here of rule or law, just as there is no question of rule of law when President Trump was accused of sexual assault — if the allegations were to go to trial that would be different, but this is not even an impeachment hearing. It is a political proceeding, and necessarily and rightly so.

The SunHave there been confirmation processes in the past that were as controversial due to sexual misconduct allegation(s)?

DB: The most important and obvious one is Clarence Thomas’s hearings. I doubt very much whether he would have been able to get away with the breakdown Kavanaugh showed yesterday, but wealthy, upper-class, white men can get away with a lot. Anita Hill was attacked in a way that Dr. Ford was not. This is possibly a sign of improvement in public ethics, but it could also be that white women are treated better than black women.

Prof. Joseph Margulies, Law and Government

Note: Comments made prior to hearings

The Sun: Given the current accusations, from a legal and constitutional perspective, should Kavanaugh’s confirmation process be suspended or proceed as planned? Please explain your reasoning.

Joseph Margulies: I have a bit of time now to pen some thoughts about this. I want to preface them, however, with some general remarks about the Supreme Court. I think many people labor under the impression that the Supreme Court is the place we go to protect our freedoms, which leads them to believe the fight over the Court is exceedingly important. I believe they are mistaken.  Apart from a very brief period in the second half of the last century, the Supreme Court has never been a force for progressive change. On the contrary, for much of American life, the Supreme Court has been a source of hidebound, reactionary thinking. Most of the time, it has done much more to block progressive change than to champion it. And yet, the country seemed to survive.

I don’t know whether Judge Kavanaugh assaulted the women who have accused him. But I strongly suspect he will be confirmed regardless of what he may have done, and that as a result, the Court will continue its movement toward becoming a reactionary force against progressive change. It has been on that trajectory for decades — at least since the 80s. And as it becomes more of what it has always been, the country will survive. To put it simply, I do not attach nearly as much significance to this debate as others because I have never pinned much hope on the Supreme Court. I believe that those who do are yearning for a Court that has not existed for many years and was always an exception.

Nothing in either the law or the constitution requires that the confirmation process be suspended. It may be important to slow things down for political reasons, but that has nothing to do with the law or the constitution. People who seize upon the law at moments like this conflate law with politics.

Paris Ghazi ’21 and Anu Subramaniam ’20  contributed reporting to this article.