Paul L. Caron

Monday, January 9, 2017

Three Four Law Profs Criticize 'Smug Self-Delusion' Of 1,400 Law Prof Signatories To 'Scandalous' Letter By 'Partisan Hacks' Opposed To Jeff Sessions

DOJ Logo (2016)Following up on last week's post, Tax Profs Join Over 1,300 1,400 Law Profs In Opposing Jeff Sessions For Attorney General:

Stephen B. Presser (Northwestern), Sen. Sessions and the Smug Self-Satisfaction of the Law Professoriate (Chicago Tribune):

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. ...

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. It is strongest in the elite bastions of the Ivy League and on the coasts, where most American law professors trained. Now, one can find it dispersed in most of our centers of legal education. ...

It is time for law professors to emerge from the smugness and self-delusion in which they have been mired for some time, and to recommit themselves to the noble task of teaching the law as a repository of timeless truths, as something above politics, and certainly above character assassination.

Michael I. Krauss (George Mason), The Law Professors' Scandalous Statement Against Jeff Sessions (Forbes):

One of my main goals as a professor of legal ethics is to try to show my students, through my teaching and scholarship, that officers of the court should be pondered and serious. We should not engage in casual character assassination. We should not become partisan hacks.

In that capacity, I regret having to conclude that the statement shames me as a law professor.

The statement is little more than a diatribe of charges against Sessions, many of which have nothing to do with his ability to execute the functions of the office to which he has been nominated. ...

Character assassination is so unworthy of our profession — what an awful example to set for the budding lawyers who are our students! The ABA Model Rules of Professional Conduct prohibit “conduct that is prejudicial to the administration of justice.” I contend that the law professors’ statement, which condemns Attorney General nominee Jeff Sessions based on irrelevancies and innuendoes, is just that.

Scott Douglas Gerber (Ohio Northern), The Law Professors Versus Sen. Jeff Sessions (Cleveland Plain Dealer):

[T]his is not the first time that leftist law professors have tried to influence Congress with preposterous arguments. ... Fortunately, there have been a few brave law professors who have publicly condemned the letter from the law professors smearing Sen. Sessions. ...

As the media have been reporting for several years now, America's law schools are in serious financial trouble because not enough students are applying for admission. Lobbying Congress in such transparently partisan terms as my leftist colleagues are prone to do — Sessions is a Republican, so he must be evil; Bill Clinton is a Democrat, so it was OK for him to commit perjury — only makes us look worse to prospective students. It's time to start behaving like professors again.

James Huffman (Dean Emeritus, Lewis & Clark), Law Professors Don’t Like Jeff Sessions Because They Are Liberals (Daily Caller):

The point of a petition from 1226 law professors, as opposed to a petition from 1226 random Democrats, is that law professors purport to bring the gravitas of special knowledge and expertise, not partisanship, to the confirmation process. This petition does not. Beyond reference to the Senate Judiciary Committee’s 1986 rejection of Sessions’ nomination to the federal district court, the law professors’ petition speaks only to political disagreements relating to immigration, drug policies, climate change and “the rights of women and members of the LGBTQ community.” The law professors, many of whom have objected in the past that judicial nominees should not be disqualified based on the parties they have represented as lawyers, are here objecting to Sessions on the basis of policy positions he has taken as a United States senator on behalf of his constituents. They offer no evidence that Sessions would fail to fulfill the responsibilities of the office for which he has been nominated.

Of course law professors, like everyone else, have every right to engage in the politics of political appointments. But I would encourage my fellow law professors to do so in their capacity as citizens, not under the pretense of having objective views that warrant special attention – or even trump the mere political views of others.

Legal Education | Permalink


AN, wrong. He did not vote for the Civil Rights Act of 1964 and participated in the filibuster against it. Unlike Gore of Tennessee or Fullbright of Arkansas who also did the same, Byrd came from a state where every other member of the congressional delegation voted for the bill so you can't say he was responding to political pressure. He also voted against LBJ's nomination of Thurgood Marshall as well. To apologize many years later is puts him in the same camp as Pete Seeger who only in old age said that maybe he was wrong for being a Communist for 40 years.

Posted by: PaulB | Jan 26, 2017 9:02:46 PM

Byrd "became" a Democrat? Wow, who knew?

Posted by: Mike Petrik | Jan 26, 2017 7:41:23 PM

Yes, Robert Byrd was formerly affiliated with the KKK. However, he renounced his affiliation with them ("the greatest mistake I ever made"), apologized repeatedly, voted for the Civil Rights Act of 1964 and became a Democrat. People can change and Byrd did. Has Sessions? (

Posted by: sm | Jan 25, 2017 12:26:02 PM

Sessions views on Climate change:

“It’s one thing to give money to people who survive attacks by ISIS, to be able to avoid malaria and tuberculosis,” Sessions said. “It’s another to spend hundreds of billions of dollars each year to try to fight this global warming that we’re not even sure exists.”

The Family Research Council removed the audio from their website without explanation.

Posted by: Flat Earthers | Jan 10, 2017 7:38:41 PM

My favorite line from Kraus:

"The statement claims that some (it never says how many) of its signers object to Sessions’ views about the relationship between fossil fuels and climate change. As regards his fitness as Attorney General, I don’t care what those views are any more than I care what Sessions thinks about NATO or the Designated Hitter rule."

That's right. A threat that could wipe out trillions of dollars of coastal infrastructure, disrupt food and water supplies, and displace millions of people is of no more significance than the designated hitter rule.

Belief in science is completely irrelevant to upholding the laws of the United States, such as those that protect clean air and water.

And if someone believes the Earth is flat, why Global Geography has nothing to do with being attorney general! Clearly the flat-earthers are qualified to serve in government.

Posted by: Flat Earthers | Jan 10, 2017 7:23:48 PM

This is probably a pretty smart move by the faculty at George Mason and Northwestern, from a purely business perspective.

A majority of people who voted and earn more than $50,000 per year voted for Trump according to exit polls.

Some of them go to law school. There are two law schools that have signaled they are going to be very supportive of those students.

Whether Sessions is a racist is besides the point. This is the marketing equivalent of Bannon building his business media business on the racist audience the National Review would thumb its nose at.

Amoral? Worse according to many. Good for business? Probably.

Posted by: Marketing to Conservatives | Jan 10, 2017 6:59:47 PM

@ Faux Anon

This isn't a hard concept. When one side launches a nuclear weapon, the other side has no choice but to launch its own. This isn't a suicide mission.

Either you tackle all discrimination, or none at all. Deal with it.

First academia, then the entertainment industry next.

Posted by: Anon | Jan 10, 2017 2:39:41 PM

For myself, Sessions is too hardline on the Drug War, among other things, but the problem for the Left is, they literally called Trump "pure evil" during the campaign, seriously and without any thought of the consequences, probably because they assumed Hillary would win. That's the thing about acting entitled to power, better be sure you win at all costs.

But one of the consequences of losing is that all criticisms of his staff appointments lack any credibility whatsoever. Godwin's law applies, the argument was conceded before the election. The Left should've waited until after the election, and had Hillary won, they could then say, "Good work, we stopped Hitler." But having labeled the President-elect history's worst monster, what's the point of criticizing his staff picks, honestly? The Democratic Party doesn't even have the votes to block any...

Posted by: MM | Jan 10, 2017 2:01:47 PM

I did not know that about Robert Byrd.
However, African-Americans were not the sole target of the Klan’s hatred. So wouldn’t Byrd’s past have been a matter of outrage the other three times he served as President pro tempore, preceding Pres. Obama taking office? Beginning in 1989—when Byrd first so served—shouldn’t all Americans have been outraged, not just “leftist[s]”?

Posted by: John Novack | Jan 10, 2017 7:59:57 AM

“The idea of going after Obama’s otherness dates back to the last presidential election — and to Democrats,” Bloomberg News reported. “Long before Trump started in, Hillary Clinton’s chief strategist, Mark Penn, recognized this potential vulnerability in Obama and sought to exploit it.
“In a March 2007 memo to Clinton (that later found its way to me), Penn wrote: ‘All of these articles about his boyhood in Indonesia and his life in Hawaii are geared toward showing his background is diverse, multicultural and putting it in a new light,’ he wrote. ‘Save it for 2050. It also exposes a very strong weakness for him — his roots to basic American values and culture are at best limited. I cannot imagine America electing a president during a time of war who is not at his center fundamentally American in his thinking and his values,’ ” Bloomberg reported.
Although Mr. Penn never suggested bringing up Mr. Obama’s birth certificate as a strategy to exploit this weakness, he did suggest Mrs. Clinton include a line in every speech saying that she was “born in the middle of America to the middle class in the middle of the last century.”

Posted by: ruralcounsel | Jan 10, 2017 4:32:33 AM

Sessions more qualified than Eric Holder. Not even a close call. And less of (and possibly not at all) a "racist." The public should be frightened when 1,000 plus lawyers sign on to any idea. More so when they are "law professors."

Posted by: Diogenes | Jan 10, 2017 4:29:13 AM

Quotas for minority representation at universities = discrimination
Quotas for Republican representation at universities = freedom
Have I got that right?

Posted by: Anon | Jan 9, 2017 6:47:14 PM

Yes Tim,

When Obama was elected the GOP worked with him in good faith and there was never even one instance of racially-motivated rumormongering against him, like the false notion that he is a Muslim or a Kenyan. Say, didn't some semi-famous celebrity lead the birther movement? What was that guy's name again? Sigh...

Posted by: Unemployed Northeastern | Jan 9, 2017 6:10:13 PM

Nope, all that happens is the Department of Education (or Department of Justice) undertakes a study or interviews faculty or follows-up on a complaint.

If you want, you can put a political affiliation box in the professors' employment application, too, right next to the boxes for race, ethnicity, religion, sexuality, etc.

But, as soon as the federal rule is announced, the hiring committees will get with the program real quick.

Please try to keep an open mind, Mr. WTF. I'm just advocating for diversity here. That's what makes our country so great, didn't you know?

This, and much more, is going to happen in a Trump Administration.

Believe that.

Posted by: Anon | Jan 9, 2017 5:27:39 PM

Make the federal regulation define discrimination on the basis of politics per se to be whenever the faculty composition deviates from the general population by more than 25%.

General population: 50% Democrat, 50% Republican (I know independents exist)
Faculty: 90% Democrat, 10% Republican

10% +/- 25% = -15% to 35% = per se discrimination and lose federal loan funding

Posted by: Anon | Jan 9, 2017 4:11:19 PM

A political test for appointment to a university faculty? That probably gets cheers on Breitbart, but smells like fascism to me.

Posted by: WTF | Jan 9, 2017 2:31:57 PM

Balance and staying away from hyperbole is a useful quality in an academic. This CNN link concerning Sessions may perhaps be a bit more balanced and nuanced than the rhetorical offerings being thrown around. The political scene that is playing out right now on all sides is quite amazing. I used to condemn Republicans for their sneaky tricks and "mad dog" attacks based on accusations and propaganda. I have to say that they have been far outdone by "progressives" who apparently feel that all character assassination is OK when it involves someone they don't want to see in power. My feeling is that this "debate" has very little to do with a thirty year old allegation and much to do with finding something to use to attack the President-Elect, muddle the agendas, teach him and his supporters a lesson, and try to show Trump has bad judgment in picking people.

Posted by: David | Jan 9, 2017 10:57:15 AM

Another example of selective, hypocritical, leftist outrage. I do not recall any letters opposing keeping a former high ranking Klansman as third in line of succession to our first black president. And unlike the vague and unsubstantiated innuendo being leveled against Jeff Sessions, Robert Byrd's racist pedigree was hardly in doubt. An Exalted Cyclops in the Klan, he later went on to filibuster the Civil Rights Act of 1964.

Posted by: Tim Kelly | Jan 9, 2017 10:53:37 AM

Trump needs to find a way to make political diversity in faculty composition a requirement for federal funding of student loans.

Posted by: Anon | Jan 9, 2017 9:09:57 AM

re: absence of tax professors signing the Sessions letter
in my law school experience, certain categories of professors appeared to be apolitical and generally avoided any campus activism: tax, securities, commercial transactions, contracts, property. the political activism was left to the civil procedure/jurisdiction, torts, constitutional (of course) and the various "Law and ___" multidisciplinary folks

I noticed the same thing in undergrad: the activist profs were 99% from one of three categories: Humanities, Social Sciences, Language/Literature. finding a STEM prof involved in campus activism was like finding a unicorn.

now I'm speaking about 25 years ago, but from what I've read recently, not much has changed. the incidents at Missouri, Yale, and other schools still bear out the same point.

Posted by: tyler | Jan 9, 2017 8:50:27 AM

This the Jeff Sessions who became only the second person in fifty years to be denied a federal judgeship by the Senate - and a Republican Senate at that! - over his record on civil rights and prejudice?

Posted by: Unemployed Northeastern | Jan 9, 2017 8:38:33 AM

Brian - The primary criticism is of the professors' "smug self-delusion" that their opinion might actually matter to someone, nevermind sway the Senate. That criticism applies regardless of the merits of the debate on Senator Sessions.

Posted by: JM | Jan 9, 2017 8:35:43 AM

It's striking how lacking in substance these partisan hatchet jobs by right-wing law professors are. Don't folks on the right know how to make an argument anymore? It's all name-calling and ad hominem and irrelevant tangents. Where is the defense of Senator Sessions on the merits? No wonder law schools have to practice affirmative action to hire conservatives these days!

Posted by: Brian | Jan 9, 2017 6:10:03 AM

I was struck by how few tax professors seem to have signed it. Are they less political or simply more sophisticated?

Posted by: mike livingston | Jan 9, 2017 4:22:50 AM