Writing to the Senate

Stephen Presser, my colleague and good friend, has an oped in today's Chicago Tribune, titled "Sen. Sessions and the Smug Self-Satisfaction of the Law Professoriate." The headline (which Steve did not write, of course) accurately captures the tenor of the piece, but here is the first paragraph:

The first striking thing about the recent letter signed by 1,100 law professors urging the U.S. Senate not to confirm attorney general nominee Sen. Jeff Sessions, R-Ala., is its extraordinary arrogance and presumption. What makes such a huge gaggle of academics so sure that 1) the Senate is incapable of determining on its own the qualifications of Sessions for a Cabinet position, and 2) What makes them think they know more than senators?

Presser calls this the "pious pontification of the law professoriate," but it seems to me more like a dose of decent democracy.  The Senate, as we all know, is tasked with providing advice and consent for presidential appointments.  Given the size and breadth of the U.S., it is self-evidently impossible for the senators to have all possible information at hand, and thus they benefit from the input of citizens.  Consequently, there is nothing inherently arrogant or presumptuous about seeking to communicate with senators.  The First Amendment itself protects the right "to petition the government," which necessarily implies that there are things the government -- including the Senate -- does not know and may not want to hear.

Presser expands his argument by asserting that "The exaggerated self-importance of the teacher of law is buttressed by immersion in an ideology very different from what most senators and most Americans believe about the law in particular and the world in general." But this point actually cuts the other way.  If professors have an outlook "very different" from the senators, that is a reason to proffer their viewpoint, not to stifle it. Decision makers benefit from multiple inputs, and good judgment is compromised in an echo chamber (on both the right and the left).  

Readers may recall Dan Filler's TFL post with a link to the sign-on letter.  In case anyone is interested, I did not sign it -- as I do not generally sign such letters unless they are within my academic field.  

Nonetheless, Presser is quite wrong to denounce the scholars who respectfully expressed their views on Sessions.

 [NOTE: This post has been slightly edited for clarity and typo correction.]

 

Comments

[Captain Hruska Carswell, Continuance King]

As a lowly Fiddler on the Roof lawyer belting out a lowly tune for a three bill retail theft, I agree with Professor Presser. The letter was premature. It is in fact elitist and suggests that those signatories don't know how to pick their battles. For instance, Professor Geoffrey Stone who kicked lawyers like me in the face with Huff Post OP ED piece denigrating GW Bush Supreme Court nominee Harriet Miers. He noted that he "never heard of her." (I guess that's relevant and Stone is KING?) And that nothing distinguishes her from thousands of other lawyers (me) who don't possess the intellectual depth to serve. He also bashed her because she didn't even attend a top 50 law school.

I see why Trump won, because I am pissed now.

[an on]

While I agree with Steve that academics have a perfect right to have their voices heard, I can't agree more with Presser about the law professoriate.

What anyone who has worked alongside law professors knows is that, as group and a general rule, they are exceptionally lazy. Not all of them, to be sure. Most. Definitely, most.

Law professors, in the main, are often incredibly ill-informed about subjects outside a very narrow focus (and, sometimes, so lazy they fail to keep abreast of developments in their own narrow field of interest.) As demonstrated repeatedly on this site, law professors repeat "facts" which turn out to be nothing more than thinly sourced opinions by political partisans, i.e., "fake news." In fact, the law professoriate seems particularly likely to sign a letter opposing someone like this nominee, without doing a f...ing thing to educate themselves on the merits, because they think it is cool to be on the side they think is without fault and ever so righteous (despite any and all evidence to the contrary), i.e., the Party. What the Party wants, law professors reflexively want. A more mindless approach is hard to imagine.

Go back and read the actual "evidence" presented at the infamous hearing that forms the basis for the present attacks, and apply a seasoned law professor's basic knowledge of the rules of evidence and good judgment. The hearing in question took place during the run up to the Bork era (1986 and 1987), and had all the hallmarks of the Party's efforts in those days to practice the art of personal destruction, culminating in the Thomas hearing (1991). The Senate Judiciary committee was led during that period by Joe Biden (1987 to 1995).

Having reviewed some of the evidence, for and against, I would say that the evidence against was inconclusive and mostly based on hearsay from partisan witnesses, while the evidence "For" (i.e., against the charge of racism) was based in fact.

Of course, not having studied the entire record in detail I would defer to a detailed recount of the proof.

But, law professors won't demand any such thing. They know better than to base accusations on actual proof of anything (so long as the person accused in on "the other side"). The Party pulls the strings, they dance.

[Captain Hruska Carswell, Continuance King]

An on at 7:46:

The Democrats didn't put a pubic hair on Clarence Thomas' can.....I mean Coke a Cola can. I believe Anita Hill.

[Enrique Guerra Pujol]

I did not sign the letter either, but as someone sympathetic to originalism, I would have thought more conservative- or libertarian-minded law professors would also be in opposition to Senator Sessions, specifically on the issue of federalism and state sovereignty ...

[Patrick S. O'Donnell]

Criminal law and legal ethics professors should have some familiarity with prosecutorial misconduct, and for that reason alone should express their opposition to Senator Sessions for Attorney General. Why? Because Sessions believes prosecutorial misconduct is a fiction and thus is not committed to what is termed "equality of arms" in international law (the meaning of which is clearly applicable to our adversarial criminal justice system). Here is a brief introduction: http://www.latimes.com/opinion/op-ed/la-oe-oppenheimer-sessions-prosecutor-20170105-story.html

As for the disturbing and systematic nature of prosecutorial misconduct in this country, please see my post, "Mapping the Dimensions of Prosecutorial Misconduct: A Short Reading Guide": http://www.religiousleftlaw.com/2015/08/mapping-the-dimensions-of-prosecutorial-misconduct-a-short-reading-guide-updated-.html

[concerned_citizen]

"Presser calls this the "pious pontification of the law professoriate," but it seems to me more like a dose of decent democracy."

Alliteration throwdown!

;-)

More seriously, as for:
"Given the size and breadth of the U.S., it is self-evidently impossible for the senators to have all possible information at hand, and thus they benefit from the input of citizens. Consequently, there is nothing inherently arrogant or presumptuous about seeking to communicate with senators."

In the general case, I agree. But in this particular case, absent one or more members of the piously pontificating professoriate having hired a private detective to skulk about and learn of some hidden dastardly deed on the part of Sessions, it is more likely self-evidently impossible that the professoriate would have anything of informative value (except the fact of their displeasure) to provide to the Senate.

[Captain Hruska Carswell, Continuance King]

Let's all stop arguing about this stuff. We need to focus our energy, time and intellect on saving Obama Care. Without health care for everybody, none of this matters.