University of Idaho law professor Elizabeth Brandt saw stark similarities last week between Justice Brett Kavanaugh’s confirmation hearings and Justice Clarence Thomas’ in 1991. Both featured women accusing them of sexual assault. Then Anita Hill. Now Christine Blasey Ford.
“It felt the same. It felt like the burden was on her,” Brandt said. “We were going to not believe her because women have an incentive to lie and she’s just making this up.”
Maureen Laflin, another UI law professor, also drew comparisons between the two nominations involving justices who faced allegations of sexual assault. But as she and thousands of other law professors noted, there were vast differences in the temperaments of the nominees.
“(Kavanaugh) could have made his points without coming out in such an attack format and disrespectful of people who were asking him questions,” Laflin said in a group interview early this week with Brandt and Boise-based UI law professor John Rumel.
The three, and in total nine UI law professors, were among the over 2,400 law professors who signed a letter opposing Kavanaugh’s nomination because they felt he displayed a lack of judicial temperament at the Sept. 27 Senate hearings. Rumel’s name is not on the letter’s list of signatures, but he said he was a signee of a supplemental version of the letter.
The letter was presented to the Senate before Kavanaugh’s appointment last week. It was also published by the New York Times and is entitled, “The Senate Should Not Confirm Kavanaugh.”
Referencing Kavanaugh’s outbursts in the hearing, several UI law professors argued the appearance of impartiality in the judiciary diminishes public trust.
“We knew that we would get a conservative justice,” Laflin said. “But the process so attacked the independence of the judiciary and a sense of the rule of law … They have tenure, lifetime tenure in order to preserve their ability to make those decisions and to apply the rule of law.”
David Pimentel, UI associate professor of law, who also signed the letter, said his experience reforming judiciaries in countries such as Bosnia, Sudan, Romania and Nepal influenced his decisions to sign the letter.
“(Kavanaugh) was asked to respond to serious allegations of serious misconduct, and he lashed out in a very intemperate way, with highly partisan statements impugning the motives, the integrity, and the intelligence of those who would question him about these things,” Pimentel wrote in an email to The Argonaut.
Former Dean of the UI College of Law and Professor Emeritus Don Burnett emphasized each signature on the New York Times opinion piece “The Senate Should Not Confirm Kavanaugh” represents individual and personal viewpoints, not the institutional position of any university.
“I signed the letter because it specifically focused on the imperative that judges must be, as stated in the letter ‘even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result,’” Burnett said.
This imperative is reinforced by a principle of judicial ethics that a judge or justice should disqualify himself or herself in a case where the individual’s capacity to act impartially may reasonably be questioned, Burnett said.
Burnett also pointed out the letter did not address questions of ideology or allegations of misconduct.
“The letter explained that Kavanaugh did not demonstrate impartiality or the appropriate judicial temperament in his strident, partisan sounding testimony before the Senate Judiciary Committee on Sept. 27,” Burnett said.
Kavanaugh has since released public statements expressing regrets for remarks made and expressing his commitment to judicial impartiality.
“The Kavanaugh confirmation proceeding is now over, but it is our responsibility as citizens to insist that future judicial nominees, as well as presidents and senators expressly and fully embrace America’s promise of equal justice under law,” Burnett said.
Assistant Professor of Law Sam Newton said he signed the letter because of the law’s requirement for judges to remain impartial and to avoid conflicts of interests.
“I believe his behavior also violated his ethical obligations as a sitting judge,” Newton said. “We should expect our judges to not only avoid partisanship, but to treat others with respect, dignity and decency, none of which I saw in his second confirmation hearing.”
Associate Professor of Law, Aliza Cover, did not sign the Times letter. Cover wrote a guest opinion piece that was published the Idaho Statesman.
Kyle Pfannenstiel and Ellamae Burnell can be reached at [email protected]