Berkeley Law dean: I signed letter against Kavanaugh ‘without hesitation’

feinstein and kavanaugh at a senate hearing

Sen. Dianne Feinstein, D-Calif., and Judge Brett Kavanaugh during the judge’s confirmation hearing before the U.S. Senate Judiciary Committee. (Courtesy CSPAN/U.S. Congress)

Berkeley Law Dean Erwin Chemerinsky is one of 1,700 law professors — 36 from the Berkeley Law faculty — to sign a public letter, posted in the New York Times op-ed pages, arguing that the Senate should not confirm Judge Brett Kavanaugh to the Supreme Court.

Not all professors agree

Earlier, Berkeley Law Professor John Yoo argued in the Washington Post that senators must be fair to Judge Kavanaugh

“Judge Kavanaugh exhibited a lack of commitment to judicious inquiry,” says the letter signed by the 1,700 professors. “Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners.”

Berkeley News talked with Chemerinsky — who took over as dean in July 2017 and has argued many times in front of the Supreme Court — about why he signed the letter, and what Kavanaugh’s confirmation could mean for the future of the Supreme Court.

How did you first hear about the letter and what made you want to sign on?

Bernard Harcourt, a professor at Columbia, is the one who reached out to me and I signed on without hesitation. At that time I had no idea that over a thousand professors would sign. I strongly agree with the sentiment in the letter. Apart from anything else, the temperament that Judge Kavanaugh showed last week at the hearing showed him to be unsuitable for this position.

Let’s talk a little more about that. What makes “judicial temperament” so important?

Judicial temperament is always enormously important. We give to judges and justices the power to make life and death decisions — to make decisions that affect all of us in the most intimate important aspects of our lives. There have to be judges who act appropriately and have the respect of society.

Erwin Chemerinsky

Erwin Chemerinsky became the dean of Berkeley Law in July 2017 and has argued many times in front of the Supreme Court. (UC Berkeley photo)

Can you give me some examples of what made you question Judge Kavanaugh’s temperament? Was it his body language? His actions? His tone? Or his words?

I think that he lied many times, partly about things regarding what occurred with Dr. Ford, and that’s very troubling. Judge Kavanaugh showed great disrespect towards the Democratic senators in not answering their questions, cutting them off and treating them rudely. A judge has to deal with litigants every day, and that kind of behavior is unacceptable for a Supreme Court justice.

What about this particular moment or nomination has caused so many law professors to sign this letter?

This is a pivotal moment in terms of the court. Justice Kennedy was the swing justice. It is also about how we treat survivors of sexual assault. It’s also about the behavior of Judge Kavanaugh at the hearings and what that behavior shows as to his judicial temperament.

Do you think the Republican senators in control of the Senate will care about this letter?

I don’t know.

Should they?

I think they should. I mean I think what’s important here is to have this many law professors within a day say this is this not who should be on the United States Supreme Court. I would hope it matters to senators.

If Judge Kavanaugh is confirmed to the Supreme Court, do you think this changes the way we think about the Supreme Court? Is this a watershed moment for the court?

I think that if Judge Kavanaugh is confirmed, there will always be a cloud over his confirmation, and I think it will tarnish the Supreme Court. I don’t know what it will mean. I don’t want to say it’s a watershed moment. It certainly will affect how people think of him and the court for a long time to come.