Bench Memos

Law & the Courts

Re: More Law Professors Behaving Badly

The law professors’ letter advancing a baseless constitutional claim about the Senate’s supposed duty in the confirmation process is as pompous as it is ridiculous.

The signatories declare themselves to be “scholars deeply committed to the fair administration of justice, upholding the rule of law, and educating future generations of the legal profession.” But it’s farfetched to imagine that any of the signatories would purport to hold this insipid constitutional position (even in private) if the president were Republican and the Senate were controlled by Democrats. (Again, those like Erwin Chemerinsky who supported the filibuster and obstruction of Bush 43 judicial nominees can’t reconcile their positions then with their new claim.)

We know that many politicians will be hacks, but we’re entitled to expect intellectual integrity from those who purport to “uphold[] the rule of law” (even though experience would instruct us that such an expectation often will be disappointed).

The actual lesson that the signatories are giving to their students is very different from the lesson they ought to be providing.

(By the way, I’ll note that even as many Senate Republicans were arguing back in 2005 that the Democrats’ filibustering of Bush 43 nominees was unconstitutional, I made clear from the outset—including in what I think was my very first Bench Memos post—that I believed the judicial filibuster to be constitutionally permissible. I made political arguments against it; I didn’t transmute my political arguments into a constitutional claim.)

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