In a comment on my post below about the dueling law professor letters about Michael McConnell’s nomination to the 10th Circuit, Sam Heldman writes that the letter I describe as “shrill” could seem so “only to somebody who takes it as a bedrock unquestionable principle that McConnell is within the mainstream and would be a good judge.” In addition, he asserts, I’ve “skipped over the critical step of argument and gone straight to assertion that anybody who disagrees with your view belongs in a zoo.”
No, I didn’t argue, but then neither did I assert that anyone who disagrees with me belongs in a zoo. I observed that, given both the stature and the political diversity of the law professors who have endorsed McConnell, the overwrought tone of the critical letter suggested that “law schools … are like an ideological zoo, but with all the cage doors open.”
Like so many of McConnell’s critics, Heldman has conflated two quite separate issues: whether McConnell is “in the mainstream” and whether he “would be a good judge.” Careful readers of my post will have noticed that it was not my purpose to argue either one of these propositions. I was simply pointing out the ideological chasm in law school faculties.
Critics of McConnell seem to believe that the “mainstream” has become so narrow that it has room only for them and their friends; everyone else is literally out of it, over on the right bank somewhere. I myself am not sure what “mainstream” means, what views are (to mix metaphors) so beyond the pale as to banish them from it. But whatever it means, yes, I do believe McConnell is swimming comfortably within it.
I say this not because I have certain knowledge of which views are “mainstream” and which are not, but because such an extraordinary number of distinguished legal scholars who disagree with McConnell — over results or interpretive methods or both — not only find his views in the “mainstream” but warmly, enthusiastically, outspokenly urge the Senate to approve his nomination.
The endorsement letter from 300 or so leading (and politically diverse) law professors has been referred to widely, including in my post to which Heldman objects. Several of the professors who signed that letter, as well as one or two others who endorsed McConnell elsewhere (such as Walter Dellinger and Laurence Tribe), sent additional comments to the Judiciary Committee that bear directly on the “mainstream” discussion, and I will refer to several of them.
Akhil and Vikram Amar, in “We Like Mike,” an open letter to Sen. Leahy on Findlaw, discussed the significance of the letter from the 300:
Perhaps most strikingly, the list was genuinely bipartisan and cross-sectional, featuring dozens of leading “liberal” as well as “conservative” scholars, including Al Alschuler, Jack Balkin, Randy Barnett, Robert W. Bennett, Lillian BeVier, Vince Blasi, Steve Calabresi, Evan Caminker, Stephen Carter, Ron Cass, Jesse Choper, Bob Clark, Michael Dorf, John Hart Ely, Richard Epstein, Sam Estreicher, Dan Farber, Charles Fried, John Garvey, Mary Ann Glendon, Carole Goldberg, Kent Greenawalt, Sam Issacharoff, Elena Kagan, Yale Kamisar, Doug Kmiec, Anthony Kronman, Doug Laycock, Jeff Lehman, Lawrence Lessig, Sanford Levinson, Saul Levmore, Dan Lowenstein, Cal Massey, Tracey Meares, Robert Nagel, Mike Paulsen, Scot Powe, H. Jefferson Powell, David Shapiro, Suzanna Sherry, Ann-Marie Slaughter, Kate Stith, David Strauss, Peter Strauss, Bill Stuntz, Cass Sunstein, and Jeremy Waldron, to name just a few.
Rarely do law professors-by nature a contentious lot, rewarded for strong opinions-come to such universal consensus. It is hard to imagine many other things that the above-named professors (to say nothing of the broader list of 300) could all agree on.
Cass Sunstein, who signed the original letter, in a separate letter, 19 August 2002, to Sen. Leahy:
As you know, I believe that the federal judiciary now reflects the undue influence of right-wing activists, and that it is extremely important for the Senate to play a large role as a check on the President’s choices. Nonetheless, I believe that McConnell should be confirmed.
… McConnell combines strong convictions not only with an ability to respect opposing views but also with the capacity to listen carefully, and on occasion to change his mind…. [His] nature is genuinely judicious. On issues ranging from free speech to affirmative action to sex equality to abortion, he is genuinely will to think, and to go where the best arguments take him.
… The crucial fact about McConnel1 is that he is no ideologue…. Those of us who are most concerned about judicial hubris in the name of the Constitution do not have much to fear from McConnell. I also believe, though here too I cannot be certain, that McConnel1 would not be a part of the alarming federal judicial attack on affirmative action – an attack that seems to me a form of judicial fiat without constitutional basis. This is the sort of thing that (I think) McConnel1 would tend to avoid….
Of course the question of Roe v. Wade looms in the background. I believe that McConnell thinks that the decision was wrong when decided. But I know that he would faithfully follow the law as it now stands. Certainly for a court of appeals nomination, it would be extremely peculiar to say that a belief in the initial correctness of Roe v. Wade is a precondition for confirmation. Many lawyers, on the left as well as the right, question Roe v. Wade. Open-minded, nonideological nominees should not be rejected for that reason….
I hope that the Senate will take an extremely aggressive role in ensuring that President Bush does not populate the bench with right-wing ideologues. I also hope that the Senate wi11 confirm McConnell, an exceptionally distinguished nominee, and the furthest thing from an ideologue.
Laurence Tribe, in an email to Sen. Leahy, 22 June 2001:
When I learned of Michael’s impending nomination, I wrote to congratulate him and to tell him that, despite our differences, some going to results others to interpretive method, I believed that we share a commitment to principled legal interpretation and to a broadly civil libertarian constitutional framework. I continue to believe that is the case….
As a person, Michael is exemplary, exhibiting openness to opposing views and a gentleness with others that commend him as someone likely to display an ideal judicial temperament. Many of his views on constitutional issues differ strongly from my own, but I have never thought that agreement with me on all such issues should be a prerequisite for my support in a context like this.
In what may be the most remarkable additional letter from one of the 300, Prof. Elena Kagan of Harvard wrote to Sen. Leahy on 10 September 2002:
I have known Michael since 1991, when I joined the faculty of the University of Chicago Law School. For several years, we spoke almost daily about law. In all that time, I never knew Michael to be anything other than thoughtful, open-minded, and evenhanded in his approach to legal questions. There is no part of Michael that is activist or extremist. He is one of the most fair and scrupulous individuals I have ever encountered. I do not believe he ever would bend the law to get to a political result. I disagree with Michael on some important matters, as I am sure you and other members of the Judiciary Committee do. But I am confident that as a judge, he would handle each and every case, regardless of the legal issue at stake, with the qualities of honesty, integrity, and fidelity to law that all his academic colleagues recognize in him.
As you may recall, I was once myself a nominee to the appellate bench. At that time, Michael exerted himself mightily to persuade then-Chairman Hatch to grant me a hearing. He thought that the treatment that the Judiciary Committee gave to many of President Clinton’s nominees was wrong. And he acted on that conviction, declining to join in the obstruction, but instead doing his best, regardless of political affiliation, for the people whom he thought would bring credit to the federal bench. I believe that approach says a great deal about the kind of judge Michael would make if you honor him with confirmation.
So, once again, yes, Mr. Heldman, if there is such a thing as a “mainstream” I am confident Michael McConnell is well within it.
Although I did not speak to this issue at all in my previous post, I also have no hesitation in saying, for whatever it may be worth, that I believe he should be confirmed. I do believe, however, that the Senate is entitled to consider a nominee’s judicial philosophy, and I have no objection to anyone opposing McConnell who disagrees with him substantially enough. What I object to are, to repeat, the shrill cries of extremism that emanate so quickly and so often, and so undeservedly, from the left these days.
Thanks for responding to my comment, and I’ll try to respond briefly and nicely. First of all, it may be helpful to know that, though I am quite “left” at least for a practicing lawyer, I ultimately blogged my support for McConnell’s confirmation because of support he received from many who know him well, attesting to his openmindedness.
But to call those who oppose his nomination “shrill”, and the other terms of scorn and derision in the original post, does seem to me to resort to adjective rather than reasoned argument. If I say, “that John Ashcroft is a dangerous man,” whether I am being shrill or not — and whether “zoo” metaphors and other derision are appropriate — depends on whether you think that John Ashcroft is a dangerous man, and (more precisely) whether you accept that a reasonable person could think that he is a dangerous man. Therefore, it seems to me, calling a letter like this one “shrill” is conclusory rather than informative.
What it really comes down to, in my calculation, is two questions: (1) assuming that Prof. McConnell would decide cases — to the extent the answers were not confined by existing precedent — along the lines of the theories laid out in his law review articles and his legal briefs in high profile cases, would that tend to make the world a better or worse place according to your definition of “better”? and (2) do you trust that he will make a good-faith effort to abide by precedent to the extent it is contrary to his preferred theories? I say “much worse” and “yes,” respectively, based on the incomplete information available to me, and so I come out hesitantly in favor of his nomination. But there is no basis for saying that anyone who thinks “much much worse” and “no” — or who thinks that the operative questions ought to be somewhat different — is to that extent ipso facto unreasonable, shrill, or zoo-like.
As I’ve been saying everywhere these days, let’s all just admit that our preferences are our preferences, and our beliefs are our beliefs, rather than convincing ourselves that we are the only ones who are “objective” about the subject.
Sam
And let me add, re the “mainstream” question, that I think that this too — like “judicial activism” — has also unfortunately become a conclusory buzzword. But using a conclusory buzzword doesn’t make one “shrill” — otherwise, we’re all guilty, whenever we say “mainstream,” “judicial activist”, and the like, which we all tend to do too much.
Sam
I appreciate the tone and the intent of Sam Heldman’s responses, and I heartily endorse his conclusion that we all simply argue our positions without claiming a monopoly of either virtue or objectivity. Sam’s own nuanced and hesitant endorsement of McConnell shows that he practices what he preaches, and I would still say that it the balance had tipped the other way for him.
He still misses the meaning of my comparison of law schools to zoos; I must have been unclear. I did not intend to imply (and still don’t think I did imply) that it is my opponents who belong in a zoo. What I meant, and think I said, is that the law schools are turning into zoos because of the cacophony of ideological disputation, as evidenced by the fact that a large number of law professors can profess to see a threat to very foundations of the republic in the views of another professor who is endorsed my so many distinguished other professors even though they profoundly disagree with him. But enough with zoos.
As for “shrill,” I didn’t call all McConnell’s opponents shrill. I called the particular opposition letter that I linked shrill. That’s how it sounds to me. Of course that view is “conclusory.” This is a blog, not a law review, and I didn’t feel any obligation to justify my reaction here with a long argument. That’s the virtue of blogs: the letter is linked, implicitly encouraging you to go read it and decide for yourself.