Yale Law School "Frets Over Court Choices"

I admit it.   I do "believe the hype":  Yale Law School and its faculty are great.  I was -- and I use this word advisedly -- blessed with the opportunity to study there.  I am thankful for the friendships formed, the conversations started, the questions raised, the challenges posed, and the doors opened there.  At the same time, sometimes the place and its people are just insufferable.

In today's New York Times, Adam Liptak reports:

The morning after Judge Samuel A. Alito Jr. was announced as the president's choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work - to defeat him.

Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I don't think conservative is the word. This person is a judicial radical."

A group called Law Students Against Alito was formed the same day. "There is a chunk of the population, probably a majority," said Ian Bassin, a founder of the group, "who does not want this guy on the Supreme Court."

If the past is any guide, the bond between this conservative judge and this law school, which has traditionally attracted liberal students and faculty members, is about to be tested. And the early indications here are that Judge Alito will face some of the hostility that met the last two Supreme Court nominees with connections to the school, Judge Robert H. Bork and Justice Clarence Thomas. . . .

Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."

After discussing Justice Thomas's (apparently) not-so-warm feelings toward the law school, Liptak notes:

Justice Thomas's confirmation hearings initially focused on his qualifications and then were rocked by accusations of sexual harassment by a former colleague in the Reagan administration, Anita Hill, of the Yale Law class of 1980. Students these days make jokes at Justice Thomas's expense, said Stephen Townley, a third-year student. "It's a question about intellectual rigor."

A few thoughts:  First, and to be clear, I do not think -- responding to Professor Althouse -- that Yale Law School and its faculty or students owe support to Judge Alito just because he attended Yale Law School.  (They should, in my view, support him -- or, at least, not oppose him -- because (a) they are smart enough to know that (b) whether or not they agree with him, Alito is obviously and overwhelmingly qualified and well-suited for the position to which he has been appointed).

Next, I believe that it is the responsibility of every law professor and informed Court observer -- whatever his or her "constitutional philosophy" or political orientation -- to avoid scrupulously and criticize clearly inexcusably ignorant statements of the kind [UPDATE:  I should, in fairness, insert the word "reportedly" here] expressed by Mr. Townley.  Obviously, engaged and reasonable people can and do disagree in good faith about the legal and normative merits of Justice Thomas's arguments, and about the policy outcomes those arguments facilitate or validate.  The claim, though, that Justice Thomas and his work are not "intellectual[ly] rigor[ous]" -- or, more precisely, that the work is any less "rigor[ous]" than that of his colleagues and predecessors on the Court -- is frivolous (or worse).  [UPDATE:  Mr. Townley has contributed a helpful and thoughtful comment, below, clarifying his views.]

Finally, the views about Judge Alito that are attributed in Liptak's piece to Professors Gordon and Ackerman -- who are both, obviously, top-shelf scholars -- cannot, in my view, be taken seriously as anything other than statements that Judge Alito is likely to reach conclusions in some cases that will facilitate or validate policy positions that Professors Gordon and Ackerman oppose.  There is nothing "radical" or "too" steadfastly conservative about Alito; there is nothing remarkable, illegitimate, or extremist about his approach; there is nothing particularly surprising about any of the results he has reached or about any of the opinions he has written.  His work is the work of a careful, conscientious, very smart, "conservative."  Do Professors Gordon and Ackerman really believe that such work is disqualifying?  Has it really come to that?

(Tom Smith nails it, here.  And there's more -- in a less critical vein -- from Will Baude and Dan Solove.)