Monday, November 14, 2005

Yale Law Frets Over Alito

A parody of the recent New York Times article, “Yale Law Frets Over Court Choices It Knows Best”:

NEW HAVEN, Nov. 8 - The morning after Judge Samuel A. Alito Jr. was announced as the president’s choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work - to defeat him.

Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I’m a judicial radical, and I don't think Alito’s conservative views fall within the mainstream of my constitutional vision.”

A group called Law Students Against Alito was formed the same day. “There is a chunk of the population, probably a majority," said Ian H.L.A. Bass, III, a founder of the group, “who are completely insufferable and pompous and frankly they do not want some working-class Sam from Newark on the Supreme Court. It’s beneath them.”

Conservative students here said they were concerned that the Alito nomination would be a replay of what they called the savage treatment meted out to Judge Bork and Justice Thomas, who endured ad hominem attacks from members of the dysfunctional Yale family.

The mood here appeared to be irrationally but predictably hostile. A few students who supported Judge Alito tended to make annoyingly traditional arguments that he was spectacularly qualified, noting that Alito has the most judicial experience of any nominee since Benjamin Cardozo. Some said, for example, that an ideology out of sync with the liberal ethos of Yale Law School should not in itself derail a candidate who was otherwise qualified.

But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito’s jurisprudence, while faithful to the Constitution, represented a betrayal of the law school’s liberal political values. For many, that was enough for a good borking.

Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions with a jaundiced eye. “Alito is a careful carpenter,” Professor Gordon said. “The things are well built, but they are not beautiful. If only I had applied my hand to interpret the Family Medical Leave Act. What a sight you would behold! Soaring arches! Corinthian columns! A veritable Sistine Chapel of statutory interpretation.”

Still, the happy memories of the Bork and Thomas hearings linger, and many of those interviewed said that they hoped the discussion of Judge Alito’s views would be robust, civil, and focused exclusively on his dissent in Casey.

“Sadly,” said Professor Kronman, the former dean, “relations between Justice Thomas and the law school have not been as warm and cordial as I would wish them to be. The confirmation process left a residue of discomfort that has never completely drained, though I think it is dissipating. I believe that he felt, with whatever justification, that the school did not come out as strongly and consistently and institutionally in support of his nomination as he would have wished. I guess it stemmed from the fact that many here portrayed him as the devil incarnate. I just can’t imagine why he would not want to embrace us now.”

The earlier nominations were a turning point for the law school, said Harold Hongju Koh, the current dean. “This kind of self-righteousness of Yale really emerged in full flower for the first time with the Bork and Thomas hearings.”

A recent study in The Georgetown Law Journal suggested that Judge Bork's assessment of the law school’s political leanings was true. The study analyzed 11 years of records reflecting federal campaign contributions by professors at the top law schools. Forty-three percent of law professors at Yale made contributions of more than $200, and 92 percent of those gave mostly or wholly to Democrats.

Professor Shuck said, “The politics of Yale Law School and the other elite law schools is 95 percent left and 5 percent other … and they all teach corporations.” He said he counted perhaps four conservative professors on a faculty of about 70. “But of course, they still have to run the gauntlet of tenure.”

Four students recently chewed over the Alito nomination in the gilded offices of The Yale Law Journal. Justinian de la Florence, another founder of the group opposing Judge Alito, said Yale law students, ipso facto, had an important role. “This really matters to our generation of little Supremes," Mr. de la Florence said. "If these hearings are going to become a national conversation about how the Constitution should be interpreted, that can’t be a one-sided conversation. Yale must be at the forefront. The Bork hearings - they were a substantive conversation. Remember Ted Kennedy’s speech? The Thomas hearings were an embarrassment filled with character attacks from the likes of my faculty. It would be great if we had another Bork hearing. If only Alito would grow a beard and wasn’t so darn smart and likeable.”

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