Judicial Conversations: What the Yale Law School Freakout Says About the Opposition to Kavanaugh

Weekly Standard – Andrew Ferguson

July 13, 2018



When President Trump announced last Monday that he had chosen Brett Kavanaugh to replace Anthony Kennedy, his little speech rang out like a starter pistol. Instantly every activist, party hack, and ideological mainchancer bolted from the blocks, issuing petitions and press releases and formal statements with astonishing speed and at maximum volume. This includes Kavanaugh’s alma mater, Yale Law School, and a contingent of his fellow Yalies.

It took only an hour after Trump’s announcement for the law school’s flacks to announce the news that Trump had chosen one of their own: “President Donald Trump today nominated Brett M. Kavanaugh ’90 . . .” etc., etc. The rest of the school’s press release was a series of testimonials from acquaintances about Kavanaugh’s overall magnificence. One professor called him “a terrific judge.” Another said that “Kavanaugh commands wide and deep respect among scholars, lawyers, judges, and justices.” A man with the impressive job title “John A. Garver Professor of Jurisprudence” summed up: “We are proud that he is our graduate.”

We? Speak for yourself, Herr Professor. By the next day a collection of not-proud and indeed horrified Yalies had posted a rebuttal to the school’s press release, with the title “Open Letter from Yale Law Students, Alumni, and Educators Regarding Brett Kavanaugh.” They were, they wrote, “ashamed of our alma mater.”

The letter, which is twice as long as the press release, is a masterpiece of pure scold. The signers criticize the “press release’s focus on the nominee’s professionalism, pedigree, and service to Yale Law School.” What the hell, they ask, do professionalism and pedigree have to do with anything? Especially when “the true stakes of his nomination” are so high? Kavanaugh’s nomination is an “emergency,” they tell us, and the school’s implicit embrace of him raises a “disturbing question: Is there nothing more important to Yale Law School than its proximity to power and prestige?”

Disturbing or not, it’s the kind of question that answers itself. And the answer is no sir, there is not—absolutely nothing whatsoever. The reason Yale Law School exists is to convey its “students, alumni, and educators” as close as possible to power and prestige. You can’t charge $255,000 for a law degree unless you throw in a healthy portion of P&P. This is why all those people who signed the open letter went to Yale and not to Oklahoma City School of Law. Nothing against OKC. I’m sure it’s terrific.

As of Wednesday afternoon, 297 students and alumni had signed the petition, which continues to collect signatures as a Google doc. One recent graduate named Alda Yuan, from the class of ’18, thought the letter was so nice she signed it twice. A quick scan of the long list of signers raises disturbing questions, however. According to the website Above the Law, 52 percent of current Yale law students are men. Among alumni the percentage of men is even higher. And yet 55 percent of the signers are women. “Disparate impact” theory, which every signer of the letter doubtless subscribes to, tells us this imbalance on its face establishes that male alumni have been victimized by gender bias, perhaps unconscious, on the part of the female signers. Did they really think we wouldn’t notice?

The letter itself is an anguished cry. The signers say that Kavanaugh, who otherwise looks like such a pleasant fellow, is a threat to “our safety and freedom.” The word safety is deployed here not in it  s conventional sense but as cant. Safety or its lack is a subjective feeling that, once asserted, is entitled to override other objective considerations. (Hell hath no fury like a law student who feels unsafe.) Freedom, as the Yalies use it, means the freedom to have an abortion  and the freedom to tell other people what to do, through government regulation and mandates. Thus Kavanaugh is not only a threat but an existential threat—of course that blockbuster phrase makes its mandatory appearance. You can’t have an emergency without its being totally existential.

The most arresting sentence in the letter comes near the end: “People will die if he is confirmed.” They will? Should it be necessary to point out to the Yale grads that people—in fact, everybody—will die even if Kavanaugh is not confirmed? Human mortality should be a settled issue by now. Perhaps the signers meant that more people will die if Kavanaugh is confirmed. But that can’t be right: There can’t be more people than everybody. Maybe they mean people will die in different ways if Kavanaugh is confirmed. It’s hard to see how he’d manage to arrange this, even from the Supreme Court, and anyway, dead is dead. Obviously these guys went to law school, not medical school.

But! Let me be clear, as President Obama liked to say. The Yale letter is not worthless. It serves as a kind of preview of the coming weeks, as the opposition to Kavanaugh’s nomination unfolds. We can expect more anguished cries, more scolding. The closest the letter gets to making an argument is to offer tendentious summaries of some of Kavanaugh’s opinions, as lawyer and judge. Soon these cases will be as familiar as a Beatles tune. There’s the Obamacare contraception mandate that Kavanaugh opposed, the young immigrant whose abortion was postponed, his opposition to net neutrality on First Amendment grounds, his approval of prayer at “open public school events in brazen contravention of our country’s separation of church and state.”

“The list,” they write, “goes on.”

We can be sure of it.