The bar fights back at Kavanaugh

When President Trump named Brett Kavanaugh as his nominee to the Supreme Court in late July, the legal community rallied around the D.C. circuit court judge. “I’m a Liberal Feminist Lawyer. Here’s Why Democrats Should Support Judge Kavanaugh,” read the headline of one Politico op-ed.

“There are a lot of good reasons for liberals to oppose Kavanaugh,” wrote Benjamin Wittes, editor in chief of the legal blog LawFare. “He’s a genuine conservative who will do a lot of the things liberals are afraid of. One of the reasons to oppose him is not that he’s some kind of terrible person. He’s a thoroughly decent and honorable person.”

The American Bar Association recommended his confirmation.

Yale Law School was particularly proud of Kavanaugh, who earned his undergraduate and law degrees in New Haven, Conn.

Akhil Reed Amar, a Yale Law School professor, wrote an op-ed for the New York Times titled “A Liberal’s Case for Brett Kavanaugh,” waiting until the fifth paragraph to mention he had taught Kavanaugh. Fellow Yale Law professor Amy Chua wrote a piece for the Wall Street Journal calling Kavanaugh a mentor for women and saying her daughter had accepted a clerkship with him. Nearly two dozen of Kavanaugh’s law school classmates sent a letter to the Senate Judiciary Committee praising his résumé and accomplishments and recommending him for the role of Supreme Court justice.

But in the wake of new allegations of sexual misconduct against Kavanaugh, including one dating from his time as a Yale undergraduate — and his own intemperate, blustering testimony at last week’s hearing of the Senate Judiciary Committee — the legal profession seems to be reconsidering. Some of his supporters have changed their minds; others now say they are undecided, and will await the outcome of the FBI investigation into the new charges.

The rallying around Kavanaugh at the time of his nomination isn’t surprising: Lawyers who may one day argue a case in front of the Supreme Court wouldn’t want to miss the chance to curry favor with one of the nine justices deciding their fate. (Lisa Blatt, the corporate lawyer and “liberal feminist” who wrote in support of Kavanaugh for Politico, works for a firm with many powerful clients who would like to be on Kavanaugh’s good side.) The confirmation would also be a further boost to the reputation of Yale Law School to get its fourth alum onto the highest court in the land (Kavanaugh would join Clarence Thomas, Samuel Alito and Sonia Sotomayor as current Yale alumni on the court).

But some are now asking how well Kavanaugh represents his school, or the legal profession as a whole, after his appearance at the hearing where he shouted at the panel, cried at times and responded to a question by the mild-mannered Sen. Amy Klobuchar, D-Minn., by asking if she had ever blacked out while drinking. It was a sharp contrast to the testimony earlier in the day of Kavanaugh’s accuser, Christine Blasey Ford, who polls show Americans found to be more credible.

Kavanaugh, seeming to channel President Trump, who reportedly said he wanted his nominee to be more aggressive, said the allegations were part of a left-wing conspiracy against him for his work in the 1990s investigating Bill and Hillary Clinton for the Starr Report. His open partisanship reversed the impression he had sought to create at his earlier hearing of “a neutral and impartial arbiter who favors no litigant or policy,” and presumably unsettled possible future litigants — or advocates — who might be identified with the judge’s political opponents.

But perhaps most important, Kavanaugh said a number of things during his testimony that are contradicted by other evidence. He also declined to call for an FBI investigation into Ford’s charge that he sexually assaulted her when they were teenagers or to have investigators talk to Mark Judge, a high school friend who Ford said was present at the time of the assault. Some legislators, including Sen. Patrick Leahy, D-Vt., are already claiming that Kavanaugh committed perjury during the confirmation process.

Hours after Kavanaugh concluded his testimony, the American Bar said the Senate should not move forward until an FBI investigation into the sexual assault allegations have been completed.

“The basic principles that underscore the Senate’s constitutional duty of advice and consent on federal judicial nominees require nothing less than a careful examination of the accusations and facts by the FBI,” ABA President Robert Carlson wrote in a letter to the Senate Judiciary Committee. The ABA had previously expressed concerns about Kavanaugh’s nomination to the D.C. circuit court.

Wittes, who had written in defense of his friend Kavanaugh, wrote Tuesday afternoon that he would vote no on the confirmation if he were a senator.

“My point is not that his confirmation in any sense turns on how much Kavanaugh drank or whether he and his friends made misogynistic jokes as teenagers,” wrote Wittes. “But his testimony doesn’t have the ring of truth either. And lack of candor in a witness in one area raises questions about the integrity of that witness’s testimony in other areas.”

The response to the allegations against Kavanaugh has also caused an outcry at Yale Law School. Last week over 100 current students traveled to Washington, D.C., to protest the confirmation, while other students, dressed in black, staged sit-ins. The school canceled some classes in anticipation of the planned protests and walkouts.

“We’re organizing both to oppose the hasty, biased, and incomplete investigation of the Brett Kavanaugh sexual assault allegations and to support and stand with Professor Christine Blasey Ford, Debbie Ramirez, and all people who have experienced sexual violence and sexual harassment,” Yale Law student Veronica Guerrero told New York magazine.

Three of Kavanaugh’s classmates who had sent the letter in support of his nomination also asked for a full investigation. The day after Kavanaugh’s testimony, dean of Yale’s Law School joined the ABA in calling for a full investigation.

“I have known Brett Kavanaugh for many years,” said law school Dean Heather Gerken in a release posted to the school’s website after his nomination. “I join the American Bar Association in calling for an additional investigation into allegations made against Judge Kavanaugh.” Gerken had earlier posted an effusive tribute to the nominee on the school’s website. “I can personally attest that, in addition to his government and judicial service, Judge Kavanaugh has been a longtime friend to many of us in the Yale Law School community,” she had written. “Ever since I joined the faculty, I have admired him for serving as a teacher and mentor to our students and for hiring a diverse set of clerks, in all respects, during his time on the court.”

Her position as of Friday, Sept. 28, was that “[p]roceeding with the confirmation process without further investigation is not in the best interest of the court or our profession.”

Mimi Rocah, a former federal prosecutor who now works as a fellow for Pace Law School, said that Kavanaugh’s performance last week in which he attacked Democrats had shaken the belief among some lawyers that he could be a nonpartisan arbiter.

“As a group, lawyers who practice before a court, especially federal court, revere it,” said Rocah. “Federal judges are revered as people who are above politics, not partisan, no matter who put them on the bench. People really expect that they’ll get a fair shake.

“I think it’s so demoralizing to see this happening, and not just to any federal court but the Supreme Court,” continued Rocah. “On the one hand, Wow, that’s a big deal for the ABA to do that, especially after Kavanaugh and everyone was touting the ABA’s approval and I think it was a big deal for a law school: These people all want to be seen favorably by justices on the Supreme Court, which could happen here, but they’re willing to risk it because I think of the way federal judges in general and the Supreme Court in particular are revered and looked up to and this just seems to be destroying that.”

Amar, the professor who wrote the Times op-ed in support of his former student and testified on his behalf to the Senate as a character witness, wrote an update to his original piece, “Second Thoughts on Kavanaugh” in which he said the accusations deserve a full investigation. Chua also found herself on defense after assertions in news accounts that she told female students seeking clerkships on how to dress to impress Kavanaugh, something she has denied doing.

On Monday evening, Harvard Law School announced that Kavanaugh would not be teaching a scheduled course for the January 2019 term. “Today, Judge Kavanaugh indicated that he can no longer commit to teaching his course in January Term 2019, so the course will not be offered,” wrote Catherine Claypoole, associate dean and dean for academic and faculty affairs. Over 800 Harvard Law alumni have signed a letter calling on the university to rescind Kavanaugh’s appointment. He was hired to lecture at the university in 2009 but is no longer listed on the staff directory.

The Senate acceded to demands to delay Kavanaugh’s confirmation vote pending an FBI report, but set a time limit of a week. The White House authorized the investigation but there has been confusion over its scope, and some former Yale classmates have claimed they tried to offer information to the bureau but have not had their calls returned.