Tag: inbrief

Kavanaugh Hearings Day One: Documents, Protests, and Democracy

During the Kavanaugh hearings, ACS will be publishing daily takeaways of key moments. For real-time coverage, follow our Twitter feed

What are today’s key takeaways?

Today the Senate Judiciary Committee began hearings on Judge Brett Kavanaugh’s nomination to fill one of the most consequential Supreme Court vacancies in a generation. Kavanaugh’s nomination process also has the distinction of being one of the least transparent in Supreme Court history.

Documents: The Democrats have been blocked from reviewing key documents from Kavanaugh’s career and the issue rightly dominated the morning session of the hearing, as Senate Democrats on the committee requested that the majority hit the pause button.

Adding to Democrats’ frustration, just last night more than 40,000 documents were released by President George W. Bush’s lawyer covering Kavanaugh’s time in the White House counsel’s office.

"This is not an attempt to delay, it's an attempt to do our constitutional duty," argued Senator Cory Booker when requesting that the hearing give members time to review the documents. Senators Durbin and Blumenthal pointedly asked Kavanaugh to himself request a delay in the hearing.

The nomination process has been so secretive and rushed that Senator Richard Blumenthal told Kavanaugh today: “If you are confirmed after this truncated and concealed process, there will always be a taint. There will always be an asterisk after your name, appointed by a president named as an unindicted co-conspirator after the vast request for documents in the most constructive period of his life were concealed. And the question is always going to be: Why was all of that material concealed?”

Protests: Throughout the day, citizens made their concerns about Kavanaugh’s extreme record known. In addition to people shouting during the hearing itself, vigils outside, attended by our own Caroline Fredrickson , drew attention to the rights and protections that hang in the balance of the Supreme Court nomination. People wearing “I am what’s at stake” t-shirts described critical legal protections that Kavanaugh’s nomination puts at risk.

Democracy: Overall, the day was a mixed bag for our democracy: Positive because these televised hearings shine a light on the importance of the courts in our daily lives. But negative because senators were unable to persuade the majority party to conduct the hearings in an open manner that allows the Senate to fully perform its duty to advise and consent on judicial nominations.

What should people be looking for in the following days?

In the coming days, these are the lines of questioning that ACS will be watching for as the hearings unfold: settled law, precedent, diversity, and constitutional interpretation. For details on each issue, read Caroline Fredrickson’s preview: Shell Game: Expect Trump’s SCOTUS Nominee Kavanaugh to Duck and Dodge Key Questions During Confirmation Hearings

Visit our Supreme Court Vacancy Toolkit for more resources.

Shell Game: Expect Trump’s SCOTUS Nominee Kavanaugh to Duck and Dodge Key Questions During Confirmation Hearings

President Trump has a radical far right agenda that is completely out of touch with the American mainstream and his pick of Brett Kavanaugh for the Supreme Court is just another step forward in pressing that agenda. The Senate has yet to review—or even receive—Kavanaugh’s full record, but nomination hearings start September 4 nonetheless.

This rushed schedule is clearly designed to prevent the American public from finding out just how far out of the mainstream Kavanaugh would be on the Court. We can also expect the nominee himself to dodge questions about his position on key laws to further hide his views.

Four issues we’ll be watching at the Kavanaugh hearings

Here are some lines of questioning that ACS will be watching for as the hearings unfold:

  1. Settled law: When asked questions about Roe v. Wade, Brown v. Board of Education, and other Supreme Court cases, Judge Kavanaugh will likely invoke the “Ginsburg Rule” to avoid answering questions about his opinion on rulings. The misinterpreting of Justice Ruth Bader Ginsburg’s response during her Supreme Court hearing is being used by the President’s nominees to avoid showing the public what it can expect from their time on the bench. In fact, nothing prevents nominees from expressing their views on settled questions of constitutional law, as the record shows Justice Ginsburg herself and previous nominees have done in their confirmation hearings.
  2. Precedent: In addition to invoking the “Ginsburg Rule,” Judge Kavanaugh will demur on giving his opinion on case law by stating he will follow precedent. The Supreme Court is, of course, not required to follow precedent, and there are plenty of indications that Brett Kavanaugh’s nomination is intended to advance causes on the right.  If the past Term’s Janus v. AFSCME is any lesson, the promise to follow precedent is no assurance at all.
  3. Constitutional interpretation: When asked how Judge Kavanaugh interprets the U.S. Constitution, he will claim to be an originalist, but this also has little meaning given that “originalists” ultimately manipulate jurisprudence to reach their desired outcomes.
  4. Diversity: Judge Kavanaugh will claim he has advanced diversity in the legal profession by hiring women and people of color as clerks, but this is cold comfort given the harm his confirmation would do on a whole host of issues that matter, from women’s health care and immigrant rights to protections against discrimination.

What won’t be discussed at the Kavanaugh hearings

If Justice Gorsuch’s hearing is any indicator, there will be a lot of discussion of Judge Kavanaugh’s carpool contributions and friends in the progressive community. Here are some things you will likely not hear:

  1. During his hearing to be a judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh said that his time as Staff Secretary for President George W. Bush was key in preparing him to serve in the judiciary. Judge Kavanaugh’s documents from that time have not been made public, despite the critical events of that time period and his own words.
  2. Judge Kavanaugh is said to be a great carpool dad and a promoter of diverse clerks, but his judicial record suggests that he protects big businesses over people.
  3. Judge Kavanaugh may discuss his belief in a strong executive branch, but his belief in the unitary executive could suggest ending Special Counsel Mueller’s investigation and preventing the President from being held legally responsible for obstruction of justice.

The Supreme Court is the last hope of those seeking justice against powerful and often discriminatory special interests. We need a Supreme Court Justice who will protect the rights of all Americans, not just those of the powerful and wealthy. But we won’t get such a Justice if these rushed hearings prevent a full review of Kavanaugh’s record and if the nominee himself is allowed to hide his views on our nation’s bedrock laws.

View ACS’s Supreme Court Vacancy Toolkit for more about Judge Kavanaugh.

For Brett Kavanaugh, the Separation of Powers Is a One-Way Street

*This is part two of a two-part series. Read part one here.

In 2008, Brett Kavanaugh authored an extraordinary law review article specifically describing his views on the separation of powers – extraordinary because all of his suggestions expanded the power of the executive branch at the expense of the other two.

The executive branch has never been stronger and never been so unchecked by the other branches, but to Kavanaugh – and to the man who has nominated him to be a Supreme Court Justice – it's never enough.

Kavanaugh and his fellow "unitarians" believe the Constitution vests the  president with direct and unbridled control over every single instrument of executive power -- including the Justice Department and law enforcement.

Unlike the justice he would replace, Anthony Kennedy, Kavanaugh would be the fifth solid vote providing Trump with the legal justification to exercise the monarch-like authority that his tweets so clearly show that he craves.

Kavanaugh made five suggestions in his 2008 article. The first one has already been widely discussed: "Provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations."

Another was to "Ensure prompt Senate votes on executive and judicial nominations." And in a further attempt to cripple Congress's ability to advise and consent, he also declared that "the political ideology and policy views of judicial nominees are clearly unrelated to their fitness as judges, and those matters therefore appear to lie outside the Senate's legitimate range of inquiry."

Kavanaugh's third suggestion was to "Streamline executive branch organization and ensure that officials in independent agencies are more accountable." Their independence "may weaken the Executive and strengthen Congress's hand in the Washington power game," he wrote. It also has "clear costs in terms of democratic accountability". And what Kavanaugh considers accountability is accountability to the president, not the public.

Kavanaugh's fourth suggestion was that everyone "Recognize that both the legislative and executive branches have legitimate and sometimes overlapping roles in war and national security." But he only advocated limits on Congress

Kavanaugh endorsed the late Justice Robert Jackson's framework for determining the legality of national security decisions: Category One is when Congress has authorized the president's actions and his authority is "at its maximum". Category Two is when Congress has neither authorized nor prohibited the action and presidents operate in a "zone of twilight". Category Three is when Congress has prohibited an action and the president's power is "at its lowest ebb."

But Kavanaugh wrote that the courts shouldn't take anything other than explicit, specific Congressional prohibition as triggering Category Three. "As a matter of judicial restraint and proper statutory interpretation, courts should be careful about finding a commander-in-chief case in Category Three based on implied prohibitions alone," he warned – taking an obvious swipe at the high court's landmark 2006 Hamdan ruling, which curbed the Bush/Cheney White House's assertion of nearly unlimited executive power in a time of war.

Kavanaugh did not quote Jackson's language about how in Category Three, "what is at stake is the equilibrium established by our constitutional system." Instead, he described that condition as when "the President asserts his preclusive and exclusive commander-in-chief authority."

Civil libertarians like David Cole, national director of the ACLU, think Kavanaugh has it exactly wrong. "If courts do not enforce constitutional and legislative limits on the executive branch's broad invocations of national security, the president will have a blank check to violate fundamental individual rights," Cole wrote in the New York Review of Books.

(Kavanaugh doesn't believe a president's war powers are limited by international law, either. He wrote in a 2010 case that for the courts to limit the president's war powers based on international law "contravenes bedrock tenets of judicial restraint and separation of powers.")

Kavanaugh's final suggestion regarding separation of powers was to "Consider the possible benefits of a single, six-year presidential term."

He argued that worrying about re-election is a distraction, and "makes it harder for presidents to tackle difficult but necessary issues in their first terms." So while Kavanaugh stresses accountability for everyone else, he argues for removing any form of presidential accountability other than impeachment.

At least he's a hypocrite

The only real chink in Kavanaugh's unitary-theory armor is that he seems to adhere to it more in theory than in practice -- and doesn't appear to feel nearly so strongly about absolute executive power when the president is a Democrat.

For instance, he acknowledged in his 2008 article that "the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots."

But back in 1998 he was super excited about making Clinton squirm. Duquesne University law professor Ken Gormley, in his 2010 book about the Starr investigation, quoted a memo from Kavanaugh on the eve of Clinton's deposition:

After reflecting this evening, I am strongly opposed to giving the President any "break" … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology to you. … The idea of going easy on him at the questioning is thus abhorrent to me...

Kavanaugh recommended several specific lines of inquiry, including:

If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?

At the March 2016 AEI event, Kavanaugh was asked to opine on Republican Senate leader Mitch McConnell's vow not to give Obama Supreme Court nominee Merrick Garland a hearing — ever.

Kavanaugh, who had written that presidents deserve to have their nominees given a vote in a reasonable amount of time, hemmed and hawed.

"Obviously, questions about the process of what's going on and the direction of the Supreme Court and what role judicial philosophy should play in the confirmation process, are really above my paygrade," he said. "And thus I can't comment on how that should all proceed, nor would I know what to say about how all that shall proceed given the different circumstances. That's not my role."

He explained that "what I believe is that the rules of the road should be set in advance… so we don't have the situation we're in."

A teachable moment?

The separation of powers is not an issue that has been a topic of much public discussion -- in part because Congress over the last two decades has largely been too fractious, too acquiescent and/or too incompetent to make a plausible attempt at reasserting its constitutional role

But Senate minority leader Chuck Schumer told the New York Times earlier this month: "This issue, I think, will affect a lot of people who are sort of O.K. with Trump but think there needs to be a check and balance."

He continued: "There are a lot of people in America who still say, `I voted for him, I guess he's O.K.' But when you ask them, Does he need a check and balance?,' they say, 'Definitely.' "

Gene Healey, vice president of the libertarian Cato Institute, wrote in the American Conservative in January about Trump's erratic behavior and low impulse control.

He wondered what Congress – or anyone else – could do if Trump pardons himself, or nukes North Korea. And he noted that in Obama's "last year alone, U.S. forces dropped over 26,000 bombs on seven different countries. Trump blew past that tally nine months into his tenure."

The presidency, Healey noted, "never seems to get any smaller or less menacing. But if there's ever going to be a 'teachable moment' on the dangers of concentrating too much power in the executive branch, it ought to be now."

On Presidential Immunity, Kavanaugh Skeptics Should Stay Focused On The Bottom-Line: If Confirmed, Will He Vote To Change Existing Law And Abort The Special Counsel’s Russia Investigation?

Judge Brett Kavanaugh’s expansive concept of presidential power has emerged as potentially a decisive issue in his confirmation battle, for two simple reasons: his record and the stakes.  Kavanaugh has created a lengthy written record, studded with calls for a presidency far more immune from legal checks than prescribed by existing law. The real-world consequences riding on what Kavanaugh’s record portends are huge: the viability of Special Counsel Robert Mueller’s investigation into Russia’s covert campaign to swing the 2016 election – and, indeed, any similar criminal investigation implicating a sitting president, such as the historic Watergate investigation by special prosecutors Archibald Cox and Leon Jaworski.

But capturing and effectively communicating this picture is not entirely straightforward.  Kavanaugh’s account of presidential authority is not completely free from qualification or ambiguity.  And while the rules established by existing Supreme Court precedents are clear, vigorous criticism of those precedents has long animated conservative backers of “unitary executive” constitutional theory, which holds that the Constitution requires untrammeled presidential control of all criminal investigations and prosecutions, including those affecting the White House. Displacing existing precedents with new White House-friendly rules would hardly seem an unrealistic prospect with Kavanaugh as a justice; he is a leading unitary executive exponent. Moreover, the debate has already been somewhat muddied, by suggestions, from respected progressive and centrist experts, that selective aspects of Kavanaugh’s writings imply that he would not rule to terminate the Mueller investigation. Finally, other progressive experts have contended that, whatever their scope, Kavanaugh’s presidential immunity notions should not “per se” block his confirmation, but should merely require that, once confirmed, he recuse himself from participating in any case implicating those views – i.e., a Trump challenge to Mueller’s investigation.

To keep the debate on course, skeptics need to keep the spotlight fixed on the single question to which the presidential immunity controversy boils down:

If confirmed, would Justice Kavanaugh vote to preserve existing law, or change it, in a manner that would abort the Mueller investigation, or any similar investigation of a substantial criminal scheme touching this or any other White House?  

If Judge Kavanaugh does not persuasively refute the ample indications, in his judicial opinions and off-the-court writings and speeches, that he would support eliminating existing legal checks on presidential criminal overreach, that failure would establish a principled and broadly credible basis for voting “no” on his pending nomination.

To maintain this focus – and sustain its credibility – it will be necessary for skeptics to get a little further into the weeds, and address apparent ambiguities in Kavanaugh’s record. First, they must swat away claims that, in fact, Kavanaugh’s record portends no threat to Mueller’s investigation.

Attempts to minimize Kavanaugh’s opposition to any mode of insulating criminal investigation of sitting presidents come from widely – and deservedly – respected figures –  Benjamin Wittes, editor of the Brookings Institution-based blog, Lawfare,         Noah Feldman, Harvard Law professor and peripatetic author and columnist, and  Asha Rangappa, Yale Senior Lecturer and former FBI agent. But these experts, weighing in with op eds written within hours of the nomination, overlooked critical parts of Kavanaugh’s record, as detailed in two lengthy rebuttal posts on New York University blog, Just Security.  In these posts, Just Security Editor in Chief Ryan Goodman, Obama White House Counsel Bob Bauer, and Obama White House ethics overseer Norman Eisen document that:

  • Although “Kavanaugh supports some special counsel investigations [italics in original],” his legislative proposals would “very specifically and most profoundly exempt the president from them . . . not only from prosecution and indictment, but also from Department of Justice investigations while in office,” quoting Kavanaugh’s express personal judgment that, “I think this temporary deferral also should excuse the President from depositions or questioning in civil litigation or criminal investigations.”  (Italics in original)
  • Kavanaugh has, on multiple occasions, indicated that this radical view – “leav[ing] the president with unfettered authority to protect his own administration from accountability under the law” – is (quoting Kavanaugh) “contemplated,” indeed, “seems to be . . . dictate[d]” by the Constitution – hence, could, presumably, should be imposed by the Supreme Court, in the absence of a congressional enactment such as he proposes.

As I have written, the stand-alone remedy Kavanaugh recommends, impeachment, is, in reality, no remedy at all. As demonstrated by the nation’s half-century of experience from Watergate to the current Russian election-rigging attempt, impeachment depends on, and will not happen without, a prior criminal investigation by a special prosecutor, meaningfully insulated from direct presidential control.

The proper response to ambiguous implications in Kavanaugh’s writings is not to embrace hopeful inferences, but to pin the nominee down, and require him to acknowledge explicitly that existing law sanctions investigations like Mueller’s. Further, he must be pressed as to whether he continues to stand by past writings that the Constitution should be re-interpreted to bar such investigations.  In particular, Kavanaugh needs to be grilled on whether he supports the Supreme Court’s landmark 1974 decision requiring President Richard Nixon to turn over his secret White House tape recordings – especially in light of a 1999 interview surfaced  this past Saturday in documents submitted to the Judiciary Committee, calling that decision “perhaps wrongly decided — heresy though it is to say so.”

Curiously, the Just Security bloggers back away from concluding that such views should “per se . . . disqualify [Kavanaugh]” from confirmation.  Instead, they urge focus on a “narrower” question – under what conditions would he recuse himself from criminal investigations implicating the president.  This seems a wrong turn.

At least at this stage, narrowing Kavanaugh’s presidential immunity views to a mere recusal issue would seem a textbook example of gratuitous negotiating against oneself, prematurely conceding that he will, perhaps should be, confirmed.

Moreover, expressing general jurisprudential views, as Kavanaugh has in his expositions on presidential power, is generally not considered grounds for disqualifying a judge from participating in a case – as distinguished from expressing an advance view tantamount to prejudgment of the case’s factual as well as its legal configuration.  Thus to conflate ideological with fact-and-law-specific prejudgment could fuel subsequent politically-driven demands to step down, for judges and justices on all sides of the spectrum.

Much more important, taking disqualification off the table misses the mark on the merits and also, quite likely, the politics of Kavanaugh’s posture on presidential immunity.  Should the Senate confirm a Supreme Court nominee who repudiates, so, presumably, would overrule, Supreme Court precedents that exposed the evidence that obliged Richard Nixon to resign, and that authorize Robert Mueller to determine the scope of and participants in Russia’s scheme to rig the 2016 election?  Will senators in competitive 2018 races want to vote, in effect, to give the current and other presidents a blank check to break the law?  Whether Kavanaugh is confirmed or not, do we want the Supreme Court to write off Congress as indifferent to whether the Court overrules United States v. Nixon and subsequent precedents permitting reasonable arrangements to insulate special counsel investigations from political interference?

Questions like those offer compelling reasons why Judge Kavanaugh’s views on presidential immunity – which he will have ample opportunity to clarify in his hearing -- should be a confirmation deal-breaker for anyone, in either party or no party, seriously concerned about preserving the rule of law in this country.

Simon Lazarus is a lawyer and writer, former White House domestic policy staffer for President Jimmy Carter, and a frequent contributor to this blog.

Congress Should Be Concerned That Brett Kavanaugh Wants to Further Restrict Its Power

*This is part one of a two-part series.

The framers of the Constitution established checks and balances between the branches of government to protect us from tyranny. But after one and a half years of Donald Trump, it is clearer than ever that that those checks and balances have given the president too much power.

There seems to be no way to effectively restrain Trump even when he's acting irrationally, recklessly, cruelly or out of bigotry -- whether he's imprisoning migrant children, banning Muslims from entering the country, unilaterally sending missiles and troops into Syria and Yemen with no apparent strategy, turning regulatory agencies against themselves, using pardons for political purposes, threatening the media, and meeting alone with Vladimir Putin.

And that's what we know about. Trump inherited hugely expanded national-security powers from the past two presidents that allow him to unilaterally and secretly conduct surveillance and order targeted killings abroad.

A Congress with any institutional pride at all would reject out of hand a judicial nominee who would cement a Supreme Court majority intent on giving yet more power to the executive branch, at the expense of the legislative and judicial branches.

But Brett Kavanaugh, who Trump has nominated to replace Justice Anthony Kennedy on the Supreme Court, would do precisely that.

Kavanaugh's views on absolute presidential immunity from civil suits, criminal prosecution and even being interviewed as part of a criminal investigation are well established by now. And of course they are particularly convenient for Trump given the current circumstance.

But that's only one element of a broader argument Kavanaugh has made in more than two decades of speeches and jurisprudence: that the Constitution vests the president with so much power that in some cases he is above the law as written by Congress and interpreted by the courts.

As Norm Eisen and Ryan Goodman recently wrote for Slate, "Judge Kavanaugh helped pioneer a maximalist theory of presidential power associated with the notion of a 'unitary executive.' "

Being a "unitarian" is not exactly the same as being an "originalist" -- although they overlap when it comes to their contempt for the Supreme Court's history of asserting constitutional protection for rights not explicitly identified in a text written by white men 229 years ago and not significantly amended since 1971.

For instance, in a talk he gave in 2017 about the William Rehnquist, Kavanaugh lauded the late chief justice's belief "that fundamental rights must either be enumerated in the Constitution (like free speech) or deeply rooted in history and tradition. Abortion was neither an enumerated right nor deeply rooted in history and tradition."

Kavanaugh, rather, is an originalist with a very expansive reading of Article II. That's the one that vests executive power in the president – or, as unitarians insist, "all" executive power.

Impeach – or get out of the way

In a 1998 law journal article, Kavanaugh sounded quite the fanboy. "The President is not simply another individual. He is unique. He is the embodiment of the federal government and the head of a political party," he wrote.

Kavanaugh argued that only Congress could judge the president, through impeachment, and that the position of independent counsel was constitutional only if the counsel was appointed by the president, and not to investigate the president.

And then, in a recently unearthed 1999 roundtable discussion, Kavanaugh argued that one of the most important Supreme Court decisions limiting executive power was wrongly decided. In 1974, the court ruled 8-0 that then-president Richard Nixon's "executive privilege" did not make him immune to a subpoena from the Watergate special prosecutor. It ordered Nixon to hand over audio tapes of his conversations and calls. He did. And two weeks later, he was waving goodbye in a helicopter.

But Kavanaugh lamented the decision, saying that "maybe Nixon was wrongly decided." His reasoning: "Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently."

Asked during a talk at the American Enterprise Institute in March 2016 if he could think of Supreme Court case "that deserves to be overturned," Kavanaugh responded "yes", without missing a beat. Pressed, he said the case he had in mind was Morrison v. Olson, the 1998 decision that upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. "I would put the final nail in," he said.

He said as much again the next month, in a landmark D.C. Circuit decision about the Consumer Product Safety Commission. In the opinion he authored, Kavanaugh approvingly quoted Justice Antonin Scalia's dissent in Morrison, that "The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom."

Beyond the spectacle of a judge giving a Supreme Court dissent the stare decisis treatment, it's an extraordinary quote. Kavanaugh essentially acknowledged that when it comes to checks and balance, he believes that near-absolute power for the president is essential to liberty. The courts, which have actually occupied that role for decades, should just stay out of the president's way.

By contrast, now-Justice Elena Kagan wrote in a 2001 law review article that "The original meaning of Article II is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the unitarian position."

And Georgetown University Law Professor Victoria Nourse, writing for the American Constitution Society, noted that "The so-called unitary executive theory set forth in Justice Scalia’s Morrison dissent has already proven dangerous in the war on terror, inviting the President to push his power beyond its limits to embrace torture.

The Consumer Product Safety Commission decision declared it unconstitutional for Congress to establish independent agencies that could be influenced, but not directly controlled, by the president – say, by having a director that he couldn't immediately fire.

That independence, Kavanaugh wrote, poses "a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances."

Yale Law Students Speak Out on Judge Kavanaugh

Last week, President Trump announced that he was nominating Judge Brett Kavanaugh of the D.C. Circuit to fill the spot of retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh is an alumnus of Yale Law School, and his nomination was quickly met with a laudatory press release from YLS, as well as op-eds from YLS faculty in the New York Times and the Wall Street Journal. Among other things, the faculty members hailed Kavanaugh for being “a longtime friend to many of us in the Yale Law School community,” for “hiring a diverse set of clerks,” and for “influenc[ing] and help[ing[ steer the [Supreme] Court” in his appellate opinions.

I was not the only YLS student to find this response from our school disappointing and deeply out of touch. A group of students and alums responded quickly, drafting an open letter to Dean Heather Gerken and the rest of the law school’s leadership. In focusing on Kavanuagh’s “professionalism, pedigree, and service to Yale Law School,” the letter stated, the school’s response “obscures the true stakes of his nomination and raises a disturbing question: Is there nothing more important to Yale Law School than its proximity to power and prestige?”

The letter walked through the many dangerous views Kavanaugh will bring with him to the Court – from his apparent disregard of Roe v. Wade as demonstrated by his treatment of the pregnant immigrant teenager seeking an abortion in Garza v. Hargan; to his stated belief that the president should be exempt from criminal investigations; to his repeated efforts to dismantle environmental and consumer protection regulations; to his persistent unwillingness to protect the rights of the country’s most vulnerable populations, including the disabled and the undocumented.

As of Sunday evening, the letter had gathered more than 600 signatures, from current students and alumni from graduating classes going back decades.

I had no part in drafting the letter, but I am immensely proud of those who did, and all those who have signed it. I can understand a desire by the YLS leadership to express pride in the success of its alumni. But Kavanaugh’s nomination poses a unique danger – not only to the many unnamed, vulnerable people, both in the U.S. and abroad, who will suffer from his decisions, but also to many students right here in our YLS community.

Kavanaugh’s nomination comes on the tail of a series of truly alarming SCOTUS decisions, decisions that threatened the rights of labor unions, pregnant women, and, in the grand finale that was Trump v. Hawaii, some of the world’s most vulnerable groups, immigrants and refugees. To heap praise on Kavanaugh – a justice who will be far to the right of Kennedy – so soon in the wake of this modern-day Korematsu, is a slap in the face to everyone in our community who will see their rights rapidly retracted if the court’s trend of liberal retrenchment continues.

Yale Law School is home to a wide range of tremendously thoughtful legal scholars. Rather than praising a judge like Kavanaugh for his willingness to hire YLS students as his law clerks – a characteristic that benefits a handful of elite players and says nothing about his ideological views and the tremendous impact they will have on the world if codified in SCOTUS opinions – YLS faculty could instead see their role as rigorously interrogating his opinions, his judicial philosophy.

Such an elite institution as YLS should not be rubberstamping someone poised to take on such a powerful role simply because he is one of their own. Its role should instead be to stand up for justice, for tolerance, and for the most vulnerable members of the country, and of its own community.