Friday, September 12, 2003


I find it irritating when people write things that are intellectually dishonest in support of a position that I agree with. Such as, for example, this article from the American Spectator, which argues in favor of the nomination of Brett Kavanaugh to the D.C. Circuit. I support Kavanaugh's nomination, and have previously written on the New York Times' shameful attempt to minimize his accomplishments.

The Spectator article, however, is inaccurate in several respects, particularly in its attempt to portray Kavanaugh not as merely qualified for the judgeship, but as more qualified than previous Democratic nominees. The article correctly notes that Kavanaugh clerked for two prestigious circuit court judges and then for Justice Kennedy, worked for the Solicitor General's office, and made partner at Kirkland & Ellis. All true so far.

But then come the comparisons:

So, how does Kavanaugh stack up against the sitting Democrat-appointed members of the court?

In 1994, Clinton nominated Judge David S. Tatel. Tatel's resume is long, but on close inspection, it appears he wore big hats, but drove few cattle. During Tatel's 28-year career prior to his nomination, he spent 24 years in private practice.

According to his official bio, he never clerked for a judge -- Supreme Court, Appellate Court, or otherwise -- and his courtroom experience was from the wrong side of the podium.
This portrayal of Judge Tatel is not so much inaccurate as it is unfair. Judge Tatel had a distinguished career before becoming a judge, including being partner at Hogan & Hartson, director of the National Lawyers' Committee for Civil Rights Under Law, director of the Office for Civil Rights in the U.S. Department of Health, Education and Welfare, and a professor for a year at Michigan. This resume does not deserve the "all hat, no cattle" insult.

Then this:
Harry T. Edwards, a Carter nominee, took his seat on the court in 1980. Before his nomination, he taught for a brief stint and was in private practice. As Chairman of Amtrak and as a labor arbitrator, he spent the bulk of his time in business. Only after his nomination did Judge Edwards author four books and publish scores of law review articles.

Only after his nomination did he teach at Duke, Pennsylvania, Georgetown, and NYU.
This is flatly inaccurate in several respects. Judge Edwards did not teach just "for a brief stint" -- he spent some 11 years as a tenured professor at Michigan and Harvard. He did not spend the "bulk of his time in business" in any sense of that word (he practiced for merely 5 years before entering academia and then the judiciary). It is not true that his four books and many law review articles came only after being nominated. I know for sure that he first published his book Labor Relations Law in the Public Sector in 1974, as well as many law review articles in the 1970s.1 Finally, while it may be technically true that only "after his nomination did he teach at Duke, Pennsylvania, Georgetown, and NYU," that is because before his nomination he was teaching at Michigan and Harvard.

Finally, there's this:
Take Elena Kagan, the 1999 Clinton nominee whose blocked appointment is likely what Democrats want to avenge with the Kavanaugh battle. Kagan received her degree from Harvard Law School, and although she clerked for the venerable Justice Thurgood Marshall, her career consisted largely of teaching at the University of Chicago before she became Associate Counsel and Deputy Assistant to then President Clinton. With a scholarly understanding of the law, but a seeming far less practical knowledge of it, Kagan, at the time, was in many ways less experienced than Kavanaugh is today.
"In many ways"? This, again, is just not true. At most, Kagan was slightly less experienced in a single arena: private practice. Notice that elsewhere, Tatel and Edwards are condemned for supposedly spending too much time in private practice, while Kagan is condemned for spending too little time there. And notice as well the way that the author diminishes the accomplishment of teaching at Chicago, one of the best law schools in the country. Having had Kagan as my Administrative Law professor, I can say that while I might disagree with her on a few issues, she would have made a brilliant and scrupulously fair judge.

In short, Kavanaugh's accomplishments can stand on their own. Those who support him, as I do, should feel no need to diminish the accomplishments of others.

1 Some pre-nomination publications by Judge Edwards: Harry T. Edwards, Arbitration as an Alternative in Equal Employment Disputes, 33 ARB. J. No. 4 (1978); Harry T. Edwards, Labor Arbitration at the Crossroads: The 'Common Law of the Shop' v. External Law, 32 ARB. J. 65 (1977); Harry T. Edwards, The Coming of Age of the Burger Court: Labor Law Decisions of the Supreme Court During the 1976 Term, 19 B.C. L. Rev. 1 (1977); Harry T. Edwards & James J. White, The Lawyer as a Negotiator (1977); Harry T. Edwards, Arbitration of Employment Discrimination Cases: An Empirical Study, Proc. of the 28th Ann. Meeting of the Nat'l Acad. of Arb. 59 (1976); Harry T. Edwards and Barry L. Zaretsky, Preferential Remedies for Employment Discrimination, 74 Mich. L. Rev. 1 (1975); Harry T. Edwards, The Developing Labor Relations Law in the Public Sector, 10 DUQ. L. REV. 357 (1972); Harry T. Edwards, A New Role for the Black Law Graduate--A Reality or an Illusion?, 69 MICH. L. REV. 1407 (1971).


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