Yale Law Frets Over
Court Choices It Knows Best
By ADAM LIPTAK,
NYTimes on the Web, November 13, 2005
NEW HAVEN, Nov. 8 -- The
morning after Judge Samuel A. Alito Jr. was announced as the president's choice
for the Supreme Court, some students and professors at his alma mater, the Yale
Law School, were already hard at work -- to defeat him.
Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN
with this instant assessment: "I don't think conservative is the word.
This person is a judicial radical."
A group called Law Students Against Alito was formed the same day. "There
is a chunk of the population, probably a majority," said Ian Bassin, a founder
of the group, "who does not want this guy on the Supreme Court."
If the past is any guide, the bond between this conservative judge and this law
school, which has traditionally attracted liberal students and faculty members,
is about to be tested. And the early indications here are that Judge Alito
will face some of the hostility that met the last two Supreme Court nominees
with connections to the school, Judge Robert H. Bork and Justice Clarence
Thomas.
Conservative students here said they were concerned that the Alito nomination
would be a replay of what they called the savage treatment meted out to Judge
Bork and Justice Thomas, who endured bruising confirmation battles.
Judge Bork's nomination was rejected in 1987, and Justice Thomas was confirmed
by a vote of 52 to 48 after his hearings in 1991.
Faculty members testified on both sides both times. But the school was
generally opposed to their nominations, said professors, students and alumni.
Justice Thomas was thought to be unqualified, and Judge Bork's views were
considered too extreme.
In his 14 years on the Supreme Court, Justice Thomas, of the Yale class of 1974,
has refused to return here, and Judge Bork, who was on the faculty for 15 years,
chortles during speeches when he cites "a bit of populist wisdom" he once saw on
a bumper sticker: "Save America. Close Yale Law School."
For now at least, Judge Alito, of the class of 1975, retains strong ties to the
law school. In a recent note to its dean, he apologized for missing his
30th reunion last weekend, presumably because he was busy courting senators and
preparing for his confirmation hearings.
"I believe," he wrote, "that this is the first five-year reunion I have not
attended."
Judge Alito may yet attract substantial support here, students and professors
said, because he is popular on a personal level, qualified as a formal matter
and technical rather than overtly ideological in his approach to the law.
He was also better known as a student than Justice Thomas, and he has not
espoused sweeping theories, as Judge Bork did in his academic writings.
The mood here appeared to be cautiously hostile. A few students who
supported Judge Alito tended to make strategic or structural arguments.
Some said, for example, that ideology alone should not derail a candidate who
was otherwise qualified.
"He is a remarkably careful, conscientious, craftsmanlike, modest, even humble
judge," said Peter H. Schuck, a law professor who described himself as a
political moderate. "It's true that he generally comes out on the side of
those who call themselves conservative. If I were in the Senate, I would
like to think I would not vote against him on that ground."
But the dominant view, based on a day of interviews at the law school, appeared
to be that Judge Alito's jurisprudence represented a betrayal of the law
school's liberal values.
Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge
Alito's 15 years of opinions. "Alito is a careful carpenter," Professor
Gordon said. "The things are well built, but they are not beautiful.
Alito in my judgment is just too steadfastly conservative."
Still, the memories of the Bork and Thomas hearings linger, and many of those
interviewed said that they hoped the discussion of Judge Alito's views would be
robust but civil.
"We've got to find some way to climb up from the hole we have dug for
ourselves," said Anthony T. Kronman, who was dean from 1994 to 2004, referring
to the tone of the earlier confirmation hearings.
Joshua Hawley, a third-year student and the president of the law school's
chapter of the Federalist Society, a conservative group, said he hoped the
school had learned a lesson from the earlier experiences.
"The faculty was perhaps somewhat chastened," Mr. Hawley said, "by the charge
that they had stabbed a colleague in the back and then had stabbed a former
student in the back."
The two earlier conservative nominees may never overcome their anger at what
they considered the school's disloyalty, said Steven Brill, a legal journalist,
entrepreneur and law school classmate of Judge Alito's.
"They both think," Mr. Brill said, "that the law school betrayed them."
The earlier nominations were a turning point for the law school, said Harold
Hongju Koh, the current dean.
"This kind of self-awareness of Yale's prominence really emerged for the first
time with the Bork and Thomas hearings," Dean Koh said. "The U.S. News
rankings started in 1987, too, and we've been at the top of those rankings ever
since."
A spokesman for U.S. News & World Report said the law schools at Yale and
Harvard were tied in the 1987 rankings. There were no rankings the next
two years. In every year since, Yale has claimed the top spot.
The law school at Yale accepts about 6 percent of those who apply, and 87
percent of those who are accepted attend, Dean Koh said. It has about 195
students a year, about a third as many as Harvard.
Justice Thomas, who has refused to have his portrait hung alongside the four
other graduates who served on the Supreme Court, did not respond to a request
for an interview.
In remarks to students at Ashland University in 1999, Justice Thomas said his
grudge against Yale was not based on his experiences as a student. "Yale
was fine," he said. "I have some fundamental disagreements with Yale Law
School subsequent to that. I don't consider myself particularly close to
Yale Law School, but that is not because of the way I was treated when I
attended Yale Law School."
Yale officials said Justice Thomas had rebuffed their invitations.
"Sadly," said Professor Kronman, the former dean, "relations between Justice
Thomas and the law school have not been as warm and cordial as I would wish them
to be."
He added: "The confirmation process left a residue of discomfort that has
never completely drained, though I think it is dissipating. I believe that
he felt, with whatever justification, that the school did not come out as
strongly and consistently and institutionally in support of his nomination as he
would have wished."
Justice Thomas's confirmation hearings initially focused on his qualifications
and then were rocked by accusations of sexual harassment by a former colleague
in the Reagan administration, Anita Hill, of the Yale Law class of 1980.
Students these days make jokes at Justice Thomas's expense, said Stephen Townley,
a third-year student. "It's a question about intellectual rigor."
Prof. Owen M. Fiss, who teaches procedure and constitutional law, said the
opposition to Justice Thomas was not as intense as it might have been,
attributing that to Justice Thomas's being black and not well known as a
student. "The one lesson for the law school," Professor Fiss said, "was
that we didn't work hard enough to oppose him."
Professor Fiss testified against Judge Bork, and he said he had no regrets.
He said he had not formed a view of the Alito nomination.
In a telephone interview, Judge Bork said that the law school had changed.
"When I went to Yale Law School to teach in 1962," he said, "it was an
overwhelmingly liberal institution, but liberals back then were quite
reasonable."
He said it was "only later, after the student troubles" of the Vietnam War era,
"that a hard attitude set in."
He added that he did not fault "the law school as such" for his treatment during
his confirmation hearings.
"There are some people whose role I didn't admire," Judge Bork said.
"There were some people who can only be described as on the left who were quite
vicious."
A recent study in The Georgetown Law Journal suggested that Judge Bork's
assessment of the law school's political leanings was true. The study
analyzed 11 years of records reflecting federal campaign contributions by
professors at the top law schools. Forty-three percent of law professors
at Yale made contributions of more than $200, and 92 percent of those gave
mostly or wholly to Democrats.
Professor Shuck said, "The politics of Yale Law School and the other elite law
schools is 95 percent left and 5 percent other." He said he counted
perhaps four conservative professors on a faculty of about 70.
Four students recently chewed over the Alito nomination in the offices of The
Yale Law Journal. Justin Florence, another founder of the group opposing
Judge Alito, said the students had an important role.
"This really matters to our generation," Mr. Florence said. "If these
hearings are going to become a national conversation about how the Constitution
should be interpreted, that can't be a one-sided conversation. The Bork
hearings -- they were a substantive conversation. The Thomas hearings were
an embarrassment filled with character attacks. It would be great if we
had another Bork hearing."
C. J. Mahoney, the one conservative student in the room, said, "It's interesting
that you formed a stop-Alito group but not a stop-Miers group," referring to
Harriet Miers, who withdrew her nomination last month. "In a perverse way,
you have the inclination to stop someone who is qualified."
Mr. Bassin said that two of Judge Alito's opinions -- one limiting the right to
sue states under the Family Medical and Leave Act, the other dissenting from a
decision upholding a federal law regulating machine guns -- troubled him.
Mr. Mahoney responded to each criticism patiently and cheerfully.
"Do we really think the streets are less safe because we rely on local laws to
enforce gun laws?" he asked. Other cases, he said, turned on "particular
methods of statutory interpretation" rather than predetermined outcomes.
"That's the difference between how conservatives and liberals look at things,"
he said.
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