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.