Law & the Courts

Yale Law School Devours Its Own

Judge Brett Kavanaugh returns from a break in his Supreme Court confirmation hearing on Capitol Hill, September 27, 2018. (Win McNamee/Pool via Reuters)
New Haven realism was supposed to redeem the nation. Instead it gave us New Haven Nietzscheanism.

‘Like Saturn,” Jacques Mallet du Pan said of the French Revolution, it “devours its children.”

The same might be said of Yale Law School.

Cory Booker (Yale Law ’97) broke Senate rules to release documents he hoped would undermine Brett Kavanaugh (Yale Law ’90) in Kavanaugh’s quest for a Supreme Court seat, while Ronan Farrow (Yale Law ’09) published a New Yorker piece containing uncorroborated allegations that Kavanaugh exposed himself to a fellow student at a Yale dorm party.

An old boys’ club, as some news-gathering organizations have naïvely suggested? More like the White Guelphs and the Black Guelphs in Dante’s Florence, ever ready to plunge a dagger in a former brother’s back.

Scarcely had the allegations against the judge been leaked to the press than other graduates of the school turned with a vengeance on one of their professors, Amy Chua, author of Battle Hymn of the Tiger Mother.

She, it is alleged, “was known for instructing female law students who were preparing for interviews with Kavanaugh on ways they could dress to exude a ‘model-like’ femininity to help them win a post in Kavanaugh’s chambers.”

When told that Chua denied the allegations, a young Yale Law School alumna was succinct: “She’s lying.”

It transpires that Chua’s husband, another professor in the school, is himself in trouble with his students. According to the Guardian, Jed Rubenfeld, whose specialty is detective novels, has been accused of inappropriate conduct with female scholars under his tuition and is the subject of an internal investigation by the university.

If, like Mallet du Pan’s France, Yale is consuming its own, it is in part because it, too, has suffered a revolution, one that has worked out about as well as Robespierre’s did.

Yale Legal Realists such as William O. Douglas changed the face of American law when they argued that judges should decide cases in ways that advance their own personal notions of progress, the whole while conning rubes with a show of old-fashioned jurisprudence, fidelity to precedent, etc.

Under what Arthur M. Schlesinger Jr. called the “Yale thesis,” the “judge chooses his result and reasons backward.” Emancipated from traditional methods of applying the law, the liberated jurist chucks Hamiltonian least-dangerous-branch sentimentalities and becomes a Numa or Hammurabi in his own right.

The cynical philosophy that supplied the intellectual justification for the Warren Court corrupted several generations of young Yale minds. “All we ever had was a tradition,” the great Constitutional scholar Alexander Bickel lamented to his Yale colleague Robert Bork, “and now that is shattered.” What remained was “personal preference and personal power and nothing else.”

Yale Law School became a seminary of realpolitik in a very nearly Bismarckian sense, devoted to a philosophy of personal and party power concealed beneath the fig leaf of civic virtue that Professor Bruce Ackerman attempted to supply when he argued that in eras of intense public passion, jurists and politicians can revise the Constitution in blatant disregard of the amending procedures specified in Article V.

To get what you want, you do what you have to do.

If, as alleged by her students, Professor Chua counseled prospective law clerks to dress in a way that would catch a judge’s eye, she was only living up to the New Haven Nietzscheanism that the dying Bickel deplored.

You do what you have to. (O my sisters, are you evil enough for this truth?)

To be sure, the Legal Realism that altered the character of Yale Law School was only one aspect of a broader revolution in the culture that relaxed restraints on the pursuit and exercise of power by the talented.

The roots of today’s establishment are found in the decades that followed the Civil War, when the Brahmin traditions of the old upper crust were breaking down in Gilded Age vulgarity. Educators in Ivy League colleges and New England prep schools consciously sought to mold a new governing class, a public-spirited patriciate that would provide leadership for the American Century they saw on the horizon.

The establishment they created was narrow and privileged, all but entirely white and male, and overburdened with preppies who had bonded in drinking rituals in Skull and Bones and the Porcellian Club. Yet it rendered a quantity of first-rate public service, and prepared the way for the more open and diverse meritocracy we know today.

Under FDR’s leadership the patricians helped defeat Hitler, and with the counsel of the Wise Men laid the groundwork for the West’s victory in the Cold War. In the same years, WASPs such as Henry Chauncey (Groton ’23, Harvard College ’28) developed the SAT, a crucial step in the Ivy League’s transition from privilege to merit.

Yet perhaps the greatest achievement of the WASP establishment was its ability to subordinate the desire for power to an ethic of service. Deeply enamored though they were of authority, the old magnificos accepted limits. Averell Harriman was aghast when Zbigniew Brzezinski, Jimmy Carter’s national-security adviser, undermined Secretary of State Cyrus Vance. “If I had gotten in the way of the relationship between the President and the Secretary of State,” Harriman said of his own service in the Truman administration, “I would have been fired, and properly so.”

Today the code by which the patrician establishment at least tried to live — its ideas of duty and honor, of good manners and seemly three-martini lunches, of public service conceived as an almost religious undertaking performed in the sight of God — is an antediluvian curiosity.

Already in 1969, Robert F. Kennedy’s civil-rights maven, Burke Marshall (Yale Law ’51), flouted the code and degraded himself when he hurried to Ted Kennedy’s side in Hyannis to help cover up the killing of a young woman at Chappaquiddick. Two decades later, George H. W. Bush kicked what remained of tradition to the curb when he availed himself of the services of Lee Atwater.

You do what you have to.

The Nietzschean revolution in the morals of the elite is now devouring its own. Brett Kavanaugh appears to have led a rather decent life as public servant, husband, and father, though he, too, perhaps made his compromises in the pursuit of power. Yet his fellow Yalies, as pledged as any Balzac hero to “insatiable ambitions” and only too ready to make a pact with Vautrin, pursue him as mercilessly as hounds a hunted fox: they fail not only to show their fellow striver elementary decency but to give him the benefit of any doubt.

In their own minds they must justify their incivility as solicitude for those whom Kavanaugh might have hurt, or more candidly as an acquiescence in partisan pressures more intense than Elihu Root or Henry Stimson ever knew.

But that is bosh. Yale’s best and brightest are devouring their own because, like so many other leaders on both the Left and the Right today, they have been schooled in a realpolitik divorced from traditional constraints, one that seeks to win at any cost.

You do what you have to.

Michael Knox Beran — Mr. Beran is a lawyer and writer. His book WASPs: The Splendors and Miseries of an American Aristocracy is to be published this year.


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