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BC Law Professors Voice Concerns About Kavanaugh Confirmation

By the time the sun set on Oct. 5, 24 professors from Boston College Law School signed a letter alongside 2,400 other law professors from across the country, presented on that day to the United States Senate, that asked leaders not to confirm Brett Kavanaugh to the Supreme Court based on what they said was a lack of a proper judicial temperament.

“We have different views about the other qualifications of Judge Kavanaugh,” the letter said. “But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”

The Heights was able to interview six of the 24 professors, and each echoed the sentiment that they signed the letter because of Kavanaugh’s actions during his hearing, rather than any political leaning or the assault allegations pending against him.

“I signed the letter because I’m a law professor who believes in justice and judges being neutral and non-biased,” said Robert M. Bloom, professor of law. “Regardless of the allegations of the professor Ford, he acted in such a way that brings discredit to judges and to justice, and that’s probably the main reason I signed it. ‘He said,’ ‘she said’ [was] obviously influential to me, but that wasn’t the reason I signed it. It was the way he acted when he testified.”

Patricia A. McCoy, professor of law, signed the letter once it was brought to her attention by Kent Greenfield, professor of law and Dean’s distinguished scholar. But, her concerns had already long been gestating.

“I had watched the Kavanaugh testimony and I had previously read some of his opinions,” McCoy said. “Previously, when I had read some of his opinions I had been concerned by the intemperate tone of some of them in which Judge Kavanaugh would go after one of the parties personally, naming them with epithets—referring to one agency head as King Richard, for example, and seemingly contemptuous of one side of the other legal disputes that were really quite technical in nature.

“And so at the time when I read that decision that raised an eyebrow. Subsequently, when I saw his testimony after Dr. Ford testified, I was equally concerned at his contemptuous tone towards women sexual assault allegations and towards the senators as well.”

Filippa Marullo Anzalone, professor of law, felt compelled to sign the letter because she believed that not only had Kavanaugh showcased a lack of judicial comportment, but that he had lied.

“It was the fact that Judge Kavanaugh did not admit that he drank in high school and acknowledge that some bad behavior may have occurred as a result of that drinking—events that perhaps he has trouble recalling,” she said. “People have to take responsibility for their actions. It is a sign of character and integrity. I think that Judge Kavanaugh could have even accomplished some good by such an admission.

“Furthermore, Judge Kavanaugh’s anger, sarcasm, and partisanship as displayed in his responses to questions posed by some members of the Senate’s Judiciary Committee were unbecoming of a sitting federal judge and may have even in violation of the judicial code of conduct.”

Jane Gionfriddo, professor emerita, said that it wasn’t her political disagreements with Kavanaugh, but his actions in front of the Senate Judiciary Committee that left her with no choice but to sign the letter.

“I would’ve signed that letter based on Kavanaugh’s testimony, and the stuff that came out around it that proved to me that he lied to the Senate, even if Kavanaugh were the most liberal judge who supported everything that I personally believe,” she said.

In addition, she echoed McCoy’s sentiment in regards to Kavanaugh’s lack of respect for Senators given the severity of the allegations against him.

“Part of [why I’m upset] is aside from Kavanaugh—I don’t mean this is why I signed the letter—this whole process with [Dr. Ford] for me, as a woman, is so difficult, it’s so difficult for every woman I know whether they’ve been sexually assaulted or not,” Gionfriddo said.

To her, the problem isn’t that Kavanaugh didn’t have a right to defend himself, it was the manner in which he chose to do it.

“I taught a first year law school course and part of it was teaching students to be written advocates, and one of the things I would always tell them is sound objective but be persuasive,” Gionfriddo said. “He had a right to be persuasive … but the way in which he did it was just so un-judge-like and he’s being nominated for the highest court in this country, it is so important that people respect it because of the decisions that come out of it that affect everybody.”

Bloom was quick to point out that Kavanaugh’s qualifications were by no means a disqualifying factor, but that they can’t be the only aspects that are considered. Anzalone agreed—she said that despite him being a potentially brilliant jurist, that alone cannot be defining qualification for a justice, considering the lifetime appointment and amount of other information presented to the Senate.

McCoy was left wondering how Kavanaugh even reached this point. She wasn’t sure how the Trump administration could have vetted the justice completely with outstanding sexual assault allegations against him and took issue with the Republicans on the Judiciary Committee who were “hell-bent” on making sure Kavanaugh was nominated.

“There are many equally conservative potential nominees who would have been highly suitable for the Supreme Court and did not bring the potential baggage and raise the concerns about judicial temperament that Justice Kavanaugh’s nomination raised and so I think that it’s highly unfortunate that the majority and the White House were not willing to substitute a more suitable conservative candidate for Justice Kavanaugh,” she said.

Greenfield took issue with Kavanaugh on a multitude of levels. His consternation began with how the Republican party has turned the battle into such a “bruising” one. Beginning with refusing to give Merrick Garland a hearing, Republicans have set new precedents, tearing apart what used to be confirmation norms, according to Greenfield.

But in the end, it was Kavanaugh’s deceptive delivery that stuck in Greenfield’s mind as he signed off on the letter.

“I became convinced during the initial hearing that Judge Kavanaugh was at least misleading the committee, and at worst lying to the committee, on a range of matters,” he said in an email. “But once Dr. Ford came forward with her accusations, which I thought were very credible, Judge Kavanaugh was even more deceptive in my view. He was affirmatively misleading with regard to his experiences in high school and college, in ways that were simply not believable. Moreover, he allowed his anger to overflow, and he delivered what can best be described as a paranoid rant.”

Partisanship was a common thread of concern between each professor.

“I have been involved with at least 200 cases before federal and state courts,” said Kari Hong, assistant professor of law. “As you can imagine, I’ve lost a lot of those cases. And those losses—some have been painful, some have been sad, some have made me angry. But never once have I felt cheated. And this is a fundamental principle of how our court system works. People have to feel that they had a fair chance. … That is such a fundamental part of giving our court system legitimacy and letting it operate.

“When Judge Kavanaugh was before Congress, he, in his own words, revealed that he has a large partisan bias, that he believes that the Clintons and other Democrats have been conspiring to hurt him. … So my concern is, if I were ever to be in front of him and even for other cases that are before him, he has tainted the process.”

The implications are wide ranging in the opinion of each professor. Gionfriddo said that Kavanaugh’s  decisions will be difficult to accept since he might be subject to further investigation if Democrats regain control of the House of Representatives after the midterm elections. Bloom and McCoy cited ramifications to the law: the fate of abortion, affirmative action, presidential power, and universal health insurance could be affected by Kavanaugh’s presence on the bench.

But for McCoy, the situation is magnified by the Supreme Court’s reputation now potentially coming further into question.

“I think there are serious concerns about the reputation of the Supreme Court for impartiality and neutrality,” she said. “It will be up to Justice Kavanaugh to take pains to make sure that he listens to both sides, openly and impartially and renders his decisions and casts his vote in an impersonal manner.”

McCoy, Gionfriddo, and Hong emphasized how difficult it was to see Kavanaugh be so disrespectful of Senators, especially considering the severity of the allegations against him. Hong has concerns about how he is going to treat litigators who, for instance, don’t have money or the people who he may feel are inferior to him, when he treated people who were his superiors, Senators, with such disdain.

Gionfriddo isn’t sure how citizens will be able to determine if Kavanaugh is acting in the best interests of the country.

“I don’t think we know whether Kavanaugh’s going to be partisan as he decides cases on the Supreme Court because the whole confirmation process was so political, including how he represented himself in his testimony to the Senate,” she said.

“I do not think we want this kind of a person with a lifetime appointment to the highest court of our land.”

Abby Hunt, Jack Miller, and Brooke Kaiserman contributed to this report.

Featrued Graphic by  Nicole Chan / Graphics Editor

October 15, 2018

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