Last week, 72 of Justice Anthony Kennedy's former law clerks signed a letteraddressed to Senators Grassley and Feinstein, respectively the chairman and ranking member of the Judiciary Committee, urging the confirmation of another former Kennedy clerk, Judge Brett Kavanaugh, to fill the vacancy created by the justice's retirement. Because I am a former Kennedy clerk, I was asked to sign the letter. I chose not to, because I believe it is at best misleading.

How Weighty is the Letter?

News of the letter in support of Judge Kavanaugh's confirmation first broke in a widely republished Associated Press story under the headline "Kennedy's former clerks praise Kavanaugh." That phrasing, which was repeated in the story's first line, gave the impression that all or nearly all of the former Kennedy clerks signed the letter. Yet by my count, the 72 signatories reflect a little under half the total number of law clerks who served for Kennedy when he was a judge on the US Court of Appeals for the Ninth Circuit and a justice of the Supreme Court. (Signatories included former Ninth Circuit clerks.) A headline stating "just under half of Kennedy's former clerks praise Kavanaugh" would have been more accurate but less impressive.

To be sure, one would want to know why the other former clerks demurred. No doubt reasons varied. Perhaps some could not be located. Others hold government or similar jobs in which signing a letter in support of the confirmation of a justice would be inappropriate or at least awkward. To give the most obvious example, Justice Neil Gorsuch, who was a law clerk for Justice Kennedy the same term as Judge Kavanaugh, did not sign the letter, but we can assume it was not because he disagrees with it. Thus, on reflection, a fully fair assessment of the 72 signatures might come out to something like "a majority of Kennedy's former law clerks who could realistically praise Kavanaugh do so." That's not as impressive as the actual headline, but still somewhat impressive.

Or is it? One can understand why the Senate would be interested in hearing the opinion of former law clerks of Judge Kavanaugh. Each of them can describe the work ethic, professionalism, and judicial temperament of the nominee based on a behind-the-scenes perspective during an intensive year. Although such considerations are hardly the only kind of evidence the Senate should consider—more about that below—they are relevant. But just being a former Kennedy clerk gives one no special insight into Kavanaugh's personal or professional traits.

My own experience is typical. I clerked for Justice Kennedy in the October 1991 Term. Kavanaugh started working for Justice Kennedy a full year after I finished. We did not overlap. My exposure to him through our shared membership in the Kennedy clerk alumni network was limited to my attendance at four or five clerk reunions over the course of the last twenty-five years. More recent Kennedy clerks would have attended even fewer reunions. What happens at such events? There is a cocktail hour followed by a sit-down dinner and a brunch the next day. Attendees typically spend most of their time catching up with their co-clerks, the other lawyers who worked for the justice the same term as they did. The more gregarious reunion-goers mingle a bit and thus engage in a handful of superficial conversations with clerks from other terms.

Accordingly, with the exception of Kavanaugh's three co-clerks and the six lawyers who clerked for both Kavanaugh and Kennedy, being a former Kennedy clerk provides one with no greater insight into Kavanaugh than being any other well-trained lawyer who happened to rub elbows with him at a few DC cocktail parties.

That is not to deny that some other signers of the letter also have firsthand knowledge of Judge Kavanaugh's qualifications, but it does not arise from their status as former Kennedy clerks. Perhaps it comes from having worked with Kavanaugh as a lawyer for Independent Counsel Kenneth Starr's investigations of President Clinton, from having appeared before Judge Kavanaugh as an advocate, or from attending Federalist Society events with him. By itself, being a former Kennedy clerk provides one with no special basis for assessing Judge Kavanaugh's fitness for serving on the Supreme Court.

Values, Judicial Philosophy, and Ideology

My allusions to the Starr investigation and the Federalist Society point to another way in which the letter is misleading. It avers that the signers hold diverse "views on politics, law, and the issues that come before the Supreme Court." Undoubtedly, the letter's signers would disagree on various such issues, but overwhelmingly, their perspective is quite conservative—substantially more so than Justice Kennedy's.

How do I know? Because hard data confirm my impression of the former Kennedy clerks as a strongly conservative group. In his award-winning 2008 Princeton University Press book, political scientist Lawrence Baum noted (at page 131) how one former Kennedy clerk who screened applicants tried to eliminate those with liberal views and that a whopping ninety percent of those ultimately hired had previously clerked for Republican appointees to the lower federal courts.

To be sure, that is not a guarantee that a clerk will be conservative. For example, I know of three former Kennedy clerks who had previously worked for Republican appointees but were not strongly conservative. However, none of them signed the letter.

And why would a liberal sign such a letter? After all, it is not likely that a Justice Kavanaugh would preserve Justice Kennedy's moderate to liberal legacy on abortion, affirmative action, capital punishment, gay rights, and a number of other issues where Kennedy leaned left. The title of a Los Angeles Times op-ed by three Yale Law professors aptly put the point last week: "There is no liberal case for Brett Kavanaugh."

There is, however, an excellent conservative case for Judge Kavanaugh's confirmation, which may explain why so many former Kennedy clerks who lean strongly right signed the letter. Yet if that was their true motivation, here too the letter misleads. It avoids any discussion of values, judicial philosophy, or ideology, suggesting that Judge Kavanaugh should be confirmed based on the fact that he is "fair-minded and conscientious."

Should that be sufficient? Based on reading Judge Kavanaugh's opinions and scholarship, some conversations with him over the years, and the say-so of people I respect and trust who know him better than I do, I am happy to stipulate to his conscientiousness, intelligence, and personal decency. I would be delighted to support him for a position on my faculty. But, to state the obvious, a Supreme Court seat is not a professorship. The decisions a Justice Kavanaugh would make would have real-world consequences for hundreds of millions of people. And from where I sit, many of those consequences would be terrible.

Deference to the President Amounts to Unilateral Disarmament

Although the Kennedy clerks' letter does not make the point expressly, it tacitly adopts one superficially plausible argument for bipartisan support for Judge Kavanaugh's confirmation. By ignoring his substantive views, the letter apparently endorses the notion that the Senate should limit its role in the advice-and-consent process to verifying the professional credentials and judicial temperament of a nominee. Otherwise, the argument goes, a Republican-controlled Senate will never confirm a Democratic president's nominee and vice versa. As a consequence, we will experience prolonged Supreme Court vacancies during periods of divided government. Meanwhile, periods of unified government will lead to ideologically extreme nominees, with the result that the polarization that infects our politics will increasingly infect the Supreme Court as well.

That is indeed a serious problem. A norm of deference may well be preferable to our current predicament. Even if so, however, it does not follow that Democrats can restore such a norm by pretending it already exists.

As David Leonhardt of The New York Times explained last year during the Gorsuch confirmation process, although each party has sought to block the other's nominees, Republicans have been more aggressive and more successful in doing so. Given where we are, Democratic acquiescence in the appointment of very conservative Supreme Court justices—even very smart and genial ones—is highly unlikely to lead to Republican reciprocation the next time a Democratic president has the opportunity to nominate a potential justice. If one thinks that a norm of Senate deference to a president's nominees is desirable, the road back does not run through unilateral Democratic disarmament.

What should Democratic senators do? Leonhardt urges them to "absorb the lessons of game theory." He does not explain what he means, but that is presumably a reference to the tit-for-tat strategy, in which one cooperates with potential rivals unless and until they take unfair advantage, at which point one retaliates proportionately.

For decades leading up to Justice Scalia's death, presidents were able to fill Supreme Court vacancies. Senate Majority Leader Mitch McConnell then denied that power to President Obama, based on a wholly invented and obviously pretextual principle under which vacancies that arise in an election year must remain unfilled. In this context, tit for tat means that Democrats should vote against any and all substantially right-of-center Supreme Court nominees until they succeed in denying a Republican president the ability to fill a vacancy. Only at that point would it be appropriate to consider a reciprocal norm of deference.

Judge Kavanaugh may ultimately be confirmed to the Supreme Court on a party-line or near-party-line vote. If he is, I shall take some modest comfort in the fact that he is intelligent, friendly, and committed to gender equality in hiring law clerks. But those are not reasons why anyone who cares about the liberal-to-moderate elements of Justice Kennedy's legacy should support Judge Kavanaugh's confirmation.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org. This appeared here on August 8,2018. https://verdict.justia.com/2018/08/08/why-i-didnt-sign-the-kennedy-clerks-letter-supporting-confirmation-of-brett-kavanaugh

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August 11, 2018

Post Script. Point well taken. No letter from suck-up folks about someone they likely met only over cocktails should sway public opinion. SCOTUS is a serious lifetime appointment.

Kavanaugh was specifically chosen since he doesn’t believe a sitting president can be indicted for crimes. By selecting him, it seems Trump is again acknowledging he is a criminal. Then there is the matter of whether or not a man under investigation should name someone at all. Did I mention Merrick Garland?