President Trump nominated Brett Kavanaugh as the next SCOTUS justice and, entirely predictably, the screeching left went wild. Of course, as became rapidly clear, they would have gone wild no matter who was nominated. Little things like forgetting to replace XX placeholders with the actual name and pre-printed signs for multiple possible nominees did kind of give the game away.

However some students (and others) at Yale seem to take the screeching to a whole new level with an open letter complaining about Yale Law School’s press release on the subject. That letter is crying out for a good fisking so here goes:

July 10, 2018

To Dean Gerken and the Yale Law School leadership,

We write today as Yale Law students, alumni, and educators ashamed of our alma mater. Within an hour of Donald Trump’s announcement that he would nominate Brett Kavanaugh, YLS ‘90, to the Supreme Court, the law school published a press release boasting of its alumnus’s accomplishment. The school’s post included quotes from Yale Law School professors about Judge Kavanaugh’s intellect, influence and mentorship of their students.

And the letter is not going to address anything in the PR from the fact that “If confirmed by the U.S Senate, he would be the Court’s fourth current member who is a graduate of Yale Law School.” to all the various quotes by senior professors etc.

Yet the press release’s focus on the nominee’s professionalism, pedigree, and service to Yale Law School obscures the true stakes of his nomination and raises a disturbing question:
Is there nothing more important to Yale Law School than its proximity to power and prestige?

In other words he’s the wrong kind of YLS graduate and REEEEEEEE

Judge Kavanaugh’s nomination presents an emergency — for democratic life, for our safety and freedom, for the future of our country. His nomination is not an interesting intellectual exercise to be debated amongst classmates and scholars in seminar. Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable. He is a threat to many of us, despite the privilege bestowed by our education, simply because of who we are.

Actually I think you’d find a lot of conservatives who agree with part of that. The “political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people” part that is. The rest? not so much. No doubt the rest of this letter will explain why it is an emergency, and why he is a threat to the most vulnerable. One hopes that the reason why “[h]e is a threat to many of us, despite the privilege bestowed by our education, simply because of who we are” is not because they are criminals or engage in illegal acts, but if not one does wonder what exactly these people have to fear.

Since his campaign launched, Trump has repeatedly promised to appoint justices who would overturn Roe v. Wade. Overturning that decision would endanger the lives of countless people who need or may need abortions — including many who sign this letter. Trump’s nomination of Judge Kavanaugh is a reliable way to fulfill his oath. Just a few months ago, Judge Kavanaugh ruled to deny a detained immigrant minor her constitutional right to abortion. Decades-old Supreme Court precedent makes clear that the government may not place an undue burden on a pregnant person’s access to abortion. But Judge Kavanaugh clearly did not feel constrained by precedent: what could be a greater obstacle than a cage? The minor had never wavered in her decision to seek an abortion and had received a judicial bypass from a state judge who found that she was competent to make the decision. Yet Kavanaugh condescendingly and disingenuously held that she must wait weeks until she was in a “better place” to make a choice about her own bodily autonomy — at which point she might not be able to have a legal abortion. Further, Kavanaugh argued that to require immigration authorities to stop blocking her from accessing this right would force the government into complicity.

Ah here we go. Given that having an abortion kills a fetus, surely it is the ability to have abortions that endangers lives? Or don’t those lives matter? Anyway, to move on to the meat of the paragraph. It seems to refer to this case where an ILLEGAL immigrant, who had been detained by ICE, sought an abortion. While I’m sure the case is tragic, I’m unclear why it is the business of anyone in the USA, and if the US Immigration authorities simply deported her the problem would have been solved as far as the US and its constitution is concerned. [Aside: Mind you I can’t help but note that this “minor” appears to have made it to the USA without parental accompaniment – and I fear that this is why she became pregnant (i.e. she was raped on the way).] Furthermore unless the signers of the letter anticipate becoming illegal immigrants to the US it seems highly unlikely that “many who sign this letter” would be affected by Kavanaugh’s ruling in this case. In fact, even if RvW is overturned it seems unlikely that the US as a whole (or even any state) will actually ban abortions. What seems more likely is that state legislatures and the courts will tend to echo the general feeling of a majority of the US electorate that abortion should be a limited option.

The judge employed similar spurious reasoning in a 2015 dissent arguing that the ACA’s contraceptive mandate violated the rights of religious organizations, even though those organizations were granted an accommodation that allowed them to opt out of providing contraceptive coverage. Kavanaugh’s opinions give us grave concern that he will consistently prioritize the beliefs of third-parties over the rights of the oppressed — not only when it comes to abortion and contraception, but also regarding other forms of medical care (including care for transgender patients), family privacy, and sexual liberty. Litigants harness this same logic when arguing that institutions have a religious right to discriminate against LGBT people — an issue the Court is certain to take up in the years to come.

It’s funny how religious people are never the oppressed, isn’t it? It’s also funny how women have a right to have someone else pay for their contraceptive choices. It is also worth noting that the letter makes no mention of the US constitution or of how the legislature can pass laws to prohibit (say) religious institutions “discriminating” against LGBT people. [Aside what happened to all the other letters? I thought it was LGBTQQ…. these days] Just possibly the complaint is that Kavanaugh actually makes judgments following the law as written down in the US criminal code, the US constitution (plus amendments) etc. as opposed to inventing new law from thin air.

Judge Kavanaugh would also act as a rubber stamp for President Trump’s fraud and abuse. Despite working with independent counsel Ken Starr to prosecute Bill Clinton, Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions. He has also noted that “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” This reversal does not reflect high-minded consideration but rather naked partisanship. At a time when the President and his associates are under investigation for various serious crimes, including colluding with the Russian government and obstructing justice, Judge Kavanaugh’s extreme deference to the Executive poses a direct threat to our democracy.

Kavanaugh has an impressive ability to read the future. He wrote his bit “call[ing] upon Congress to exempt sitting presidents from civil suits” in 2012 based on a symposium in 2009. Moreover as the sentence itself says, he wants congress to pass a law about this, which is inconsistent with acting as a rubber stamp or showing extreme deference. [Update: powerlineblog points out that he may not actually be good news for a criminal president citing various liberal legal scholars] Finally “the President and his associates are under investigation for various serious crimes” is a concerning statement from what are supposed to lawyers or at least would-be lawyers. There’s this pesky thing in Anglo-saxon jurisprudence called the presumption of innocence and yet the writers of this letter seem to acting under the impression that these investigations will necessarily result in prosecutions. We’ve had over a year of investigation and so far the prosecutions seem to be for such crimes as “lying to the FBI when ambushed by them” and “being a sleazy lobbyist several years ago”.

As part of his assault on the administrative state — based not in law, as he claims, but on policy preference — Judge Kavanaugh has undermined attempts to protect the environment and regulate predatory lenders and for-profit colleges. He has called now-defunct Net Neutrality regulations violations of the First Amendment. If elevated, the judge would pose an existential threat to the government’s ability to regulate for the common good and further twist the First Amendment beyond recognition, using it as a sword to advance his personal political preferences. His appointment would usher in a new era of Lochner, with “black-robed rulers overriding citizens’ choices.”

So someone who has “extreme deference to the Executive” (see previous para) is also engaging in an “assault on the administrative state”. When was the Executive not in charge of the “administrative state”? Ah yes. This is a question we can answer: when the Executive is the wrong sort of Republican (i.e. President Trump or (earlier) Reagan). Also allow me to interpret “the judge would pose an existential threat to the government’s ability to regulate for the common good and further twist the First Amendment beyond recognition, using it as a sword to advance his personal political preferences.” Something tells me the exact same sentence could be written about, say, Justices Sotomayor or Kagan. The difference being that their personal political preferences (as seen in recent dissents) align with those of the letter writers. In fact given that Kavanaugh seems to be the exact opposite of an activist judge “black-robed rulers overriding citizens’ choices” is exactly what he will not be responsible for. What this whole paragraph is actually about is the fear that SCOTUS will now reverse all sorts of legally suspect rulings and regulations that twist the constitution into a pretzel but legalize things that the left likes.

Judge Kavanaugh has consistently protected the interests of powerful institutions and disregarded the rights of vulnerable individuals. On the D.C. Circuit he denied a student with disabilities access to the remedial education he was promised after he emerged from juvenile detention. In a 2008 dissent, Judge Kavanaugh argued undocumented workers are not protected by labor laws. In 2016, Judge Kavanaugh ruled that employers can require employees to waive their right to picket. In a concurrence, he argued that the National Security Agency’s sweeping call surveillance program was consistent with the Fourth Amendment. As an attorney, he advocated for prayer at open public school events in brazen contravention of our country’s separation of church and state.

The list goes on. We see in these rulings an intellectually and morally bankrupt ideologue intent on rolling back our rights and the rights of our clients. Judge Kavanaugh’s resume is certainly marked by prestige, groomed for exactly this nomination. But degrees and clerkships should not be the only, or even the primary, credential for a Supreme Court appointment. A commitment to law and justice is.

I suggest that the “intellectually and morally bankrupt ideologue[s]” are the writers of this letter “intent on rolling back … the rights of” those they disagree with such as Christians. I do agree with the writers that credentialism is bad. I do however think that Judge Kavanaugh has in fact shown a “commitment to law and justice”

Now is the time for moral courage — which for Yale Law School comes at so little cost. Perhaps you, as an institution and as individuals, will benefit less from Judge Kavanaugh’s ascendent power if you withhold your support. Perhaps Judge Kavanaugh will be less likely to hire your favorite students. But people will die if he is confirmed. We hope you agree your sacrifice would be worth it. Please use your authority and platform to expose the stakes of this moment and the threat that Judge Kavanaugh poses.


I’ve been hunting for evidence that “people will die”. The only ones I can see mentioned in this letter are the unfortunate fetuses who are killed in abortions – something that the letter writers seem to want more of. As with the rest of the letter this concluding paragraph is partisan hyperbole and is, IMHO, mostly a good reason to take the list of signers and blacklist them from employment in any position that concerns itself with the US legal system.