By David French
Wednesday, July 11, 2018
On Monday, Yale Law School had the audacity to do
something that any and every law school would do if one of its graduates were
nominated to the Supreme Court — issue a press release touting the occasion.
And why not? To the extent that any conservative can be a part of the elite
academic club, Brett Kavanaugh belongs.
He’s a double Yale graduate (college and law school) and a former Harvard Law
School professor. How did he get there? Allow the Boston Globe to tell the story:
When Elena Kagan was dean of
Harvard Law School, she was in search of rising conservative legal stars. The
traditionally liberal campus, the thinking went, could use a little ideological
diversity with more robust debate and the challenge of different viewpoints.
Among Kagan’s hires, as a visiting
professor, was a newly appointed federal appeals-court judge from Washington
named Brett Kavanaugh.
Yes, that’s right. Justice Kagan hired Brett Kavanaugh at
Harvard Law. He’s no radical. He’s a serious conservative legal mind, and it is
entirely right and proper for a school that enrolls conservative students and
even (on occasion) hires conservative professors to put out a simple press
release celebrating the elevation of one of its own to the highest court in the
land.
Or maybe not. There’s now an open letter signed by a host
of Yale Law School “students, alumni, and educators” not just declaring their
opposition to the Kavanaugh nomination, but saying they are “ashamed” at Yale’s
press release. To these signatories, Kavanaugh is nothing but a menace, and
Yale’s celebration of his achievements is motivated by nothing more than its
lust for “proximity to power and prestige.”
The rhetoric is amazing, reading more like a random
Twitter tirade than a studied critique from the nation’s brightest legal minds.
“Judge Kavanaugh’s nomination presents an emergency — for democratic life, for
our safety and freedom, for the future of our country,” the letter reads. Yes,
an “emergency.” Later, it even declares that “people will die if he is
confirmed.”
Obviously, Flight 93 paranoia isn’t confined to the
Trumpist right.
I do not expect a Yale progressive to support Kavanaugh;
I expect progressives everywhere to rally to try to defeat his nomination. But
where is the perspective? Where is the sense of proportion? Once again,
increasingly radicalized Americans confront conventional politics and
good-faith legal disputes and react as if the sky is falling — as if no decent
human being could possibly disagree with their analysis.
And they’re saying this about Brett Kavanaugh. If there were a Mount Rushmore of establishment
GOP lawyers, his face would be chiseled upon it. He’d have been a likely
nominee in a Rubio or Jeb Bush administration. Stanford’s Michael McConnell,
writing in Politico, said this about
Kavanaugh’s role in the court:
The balance of the Court is never
set in stone. Over the past two terms, Justices Stephen Breyer and Elena Kagan
have more frequently broken from their more leftward colleagues to forge a more
moderate path, often in conjunction with Chief Justice John Roberts.
Temperamentally and jurisprudentially, Kavanaugh is more like to be part of
this invigorated middle than to swing toward the extremes. It would be a good
thing for the country if the Court moved in a less polarized direction.
In other words, if
Kavanaugh represents a life-threatening emergency, then virtually any
originalist judge represents a life-threatening emergency.
At this point, a radical reader might nod along and say,
“Yes, any originalist nominee will
cost lives.” But if you look at the Yale letter, it fails to make its case.
It’s a long screed claiming that, among other things, Kavanaugh is
insufficiently protective of the administrative state (I wonder if any of the
signatories are also demanding that Congress “abolish ICE”), overly protective
of religious liberty, and lacking in sympathy for favored plaintiffs. It
doesn’t contain an ounce of serious legal analysis.
Indeed, one gets the feeling that this is really all
about Roe. After all, refusing to force
Priests for Life to facilitate contraception access for its handful of
employees — or determining the appropriate standard of judicial review for
agency interpretations of governing statutes — hardly seem like decisions
worthy of the apocalyptic rhetoric. But abortion-on-demand is the centerpiece
of the sexual revolution, and the sexual revolution is a new American religion.
The French had their Cult of Reason. The radicals have their Cult of Sex, and
shame on anyone who offers respect to the heretics.
Yet even there — even on the ultimate question of the
judicial wars — the letter fails to justify its alarm. After all, if Roe is overturned, abortion won’t be
banned, certainly not in America’s blue bastions, and not anytime soon. The
question of life and death will merely be sent back to the states and,
ultimately, the people.
Remember, this open letter is no mere statement of
opposition to Kavanaugh. It’s a demand that one of the country’s most respected
institutions of higher learning be “ashamed” for celebrating the success of one
of its graduates — a person who has a long track record of service to the
academy and respect for his ideological opponents. It’s a call to enlist
institutions of higher learning in a radical ideological crusade. It’s a message
to conservative Americans that we hear loudly and clearly — that we’re evil,
our views are not worthy of respect, and we should have no place in the highest
echelons of the American academy.
To read the Yale letter is to peer into the future. It’s
mainly signed by a collection of young lawyers and students who are already on
a trajectory to lead the American academy, government, and economy. They
represent a left-wing face of American intolerance, and that intolerance will
haunt our politics for decades to come. If you think polarization is bad now,
the radical students at Yale are sending a clear message: They have not yet
begun to rage.
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