On January 3, 2017, The Washington Post reported that more than 1100 law professors from 170 schools have petitioned the Senate Judiciary Committee to reject President-elect Trump’s nomination of Senator Jeff Sessions to be the next attorney general of the United States. The next day The Advocate reported that the number of signatories had increased to 1226, from 176 law schools.
It is possible that a competing law professor petition in support Mr. Sessions’ nomination will surface before the Judiciary Committee conducts hearings scheduled for January 10 and 11. If one does, the number of signatories is certain to be a fraction of those writing in opposition. That would tell you a lot more about American law schools than about the qualifications of Jeff Sessions to be attorney general.
Surveys conducted by Professor Jim Lindgren of Northwestern University School of law have consistently revealed that between 80 and 90 percent of law professors self-identify as Democrats. So it’s not surprising that a significant number of law professors oppose a Trump nominee for attorney general. But these professors are not protesting as Democrats. They are protesting as law professors, suggesting that as legal scholars their opinions reflect objective study and warrant special consideration by the Judiciary Committee.
Sadly, there is little objectivity to be found in much of the teaching or scholarship of the legal professoriate. A study by University of Chicago law professors Adam Chilton and Eric Posner found that “law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship.” Chilton and Posner conclude that their findings “raise questions about standards of objectivity in legal scholarship.” They also raise questions about standards of objectivity in law professors’ opinions of the qualifications of nominees for political office.
It is not unreasonable to think that law professors, particularly those at the nation’s very best law schools, would have special expertise on the qualifications required of an attorney general. Indeed some do, and their opinions should matter. But any hope of objective evaluation from even the most respected in the legal professoriate has long since been sacrificed to the politicization of American legal education. The fact that 1226 law professors signed the letter, notwithstanding that most of them know little or nothing about Senator Sessions other than that he is a conservative senator from a conservative state and was three decades ago denied a federal district court appointment, underscores that their effort is pure partisanship – as would be a petition from a few hundred law professors in support of the Sessions nomination.
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.