More than 1,000 law professors — including at least eight in Iowa — signed a letter this week opposing confirmation of U.S. Supreme Court nominee Brett Kavanaugh, arguing he “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.”
Signatories to the letter, which increased throughout Thursday, include four from the University of Iowa College of Law and four from Drake University Law School in Des Moines. UI law professor Paul Gowder — who teaches constitutional law and torts, along with professional responsibility — said he felt compelled to add his name after Kavanaugh, during a hearing last week on sexual assault allegations, used partisan rhetoric, promoted revenge conspiracies and levied unprofessional attacks on senators questioning him.
“People who are subject to such serious allegations are often upset, and asking them to remain civil in response is a big ask,” Gowder told The Gazette in an email. “But we make a lot of big asks of judges. Judges are not entitled to react like normal people, they’re not entitled to be partisan like normal people.
“They play a special role in our legal system, and occupy a special position of trust.”
The letter, which ran Wednesday in the New York Times with planned delivery Thursday to the U.S. Senate, indicates the professors in their signing aren’t representing their institutions and, in fact, hold differing views about Kavanaugh’s qualifications.
“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 letter says.
It references historical standards — citing the Federalist Papers’ insistence that judges as “guardians of the constitution” demonstrate “integrity and moderation” — and legal statutes governing judge bias and recusal.
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Gowder, in his comments to The Gazette, pointed to the American Bar Association’s model code of judicial conduct and its forbiddance of partisan affiliations — barring judges, for example, from making speeches for political organizations, giving money to political campaigns and endorsing candidates.
“Those standards, and the ideals they represent, are totally inconsistent with the picture of a sitting judge, nominated for a promotion to the highest court in the land, responding to very serious allegations against him with ranting about revenge conspiracies and dark intimations about comeuppance,” Gowder said. “I find it very hard to see how Kavanaugh can fulfill the functions of a neutral judicial officer.”
Those doubts permeate the letter from the law professors, who openly fret about Kavanaugh’s decision-making and priorities — even in the face of personal and painful accusations.
“Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to senators,” according to the letter.
Andrew Jurs, associate dean of Drake University Law School who also signed the letter, said he too was “shocked” by Kavanaugh’s demeanor — notably his partisan statements and disrespectful responses. And he’s hopeful senators will consider the totality of the nominee before plowing ahead with confirmation.
“But whether it will have an impact is a question you should ask Grassley and Ernst,” he said of Iowa’s U.S. Sens. Chuck Grassley and Joni Ernst. “I would hope they would consider professors of law.”
The partisan nature of the debate, however — with Republican lawmakers mostly in favor of Kavanaugh and Democrats against him — has UI political science professor Tim Hagle doubting his law school colleagues can sway the vote.
“The short answer is no,” Hagle said, citing Kavanaugh’s well-qualified rating from the American Bar Association and his reputation and record over his decade-plus on the U.S. Court of Appeals. “Especially in a situation like this, where everyone is so polarized and political.”
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He conceded Kavanaugh’s confirmation, scheduled for a final vote Saturday, likely will be among the closest in U.S. history, with Vice President Mike Pence potentially being called on to break a tie. But even if that happens, Hagle said, the rancor of this confirmation process might not have the lasting taint on the high court that professors hint at in their letter.
“Like I tell my students, it’s hard to make everyone mad at once,” he said. “There are times the left is not happy with the court, like now, but they might some cases later down the road.”
Gowder, though, argued ignoring Kavanaugh’s behavior is dangerous and threatens causing irreparable harm to the Supreme Court’s reputation as an impartial and revered cornerstone of this country’s democracy.
“The Supreme Court has no power on its own,” Gowder said. “The only reason officials in the other branches obey its rulings (especially in constitutional law) is because it has public legitimacy — because, on the whole, we more or less trust it to neutrally interpret the law.
“Over the last couple of decades, that legitimacy has already been seriously damaged, and confirming an open partisan like this can only make matters worse.”
Iowa law professors who signed the letter:
• Bram T.B. Elias, UI clinical associate professor of law
• Paul Gowder, UI law professor
• Leonard A. Sandler, UI clinical law professor
•Gregory H. Shill, UI associate law professor
• David S. Walker, Dwight D. Opperman Distinguished Professor of Law, Emeritus, Drake University Law School
• Vinay Harpalani, visiting law professor at Drake
• Andrew Jurs, associate dean and law professor at Drake
• Allan W. Vestal, law professor at Drake
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