Posted by Juan Non-Volokh: Law Professor Letters: A letter in opposition to the "nuclear option" is currently circulating among law professors. Drafted by the Alliance for Justice, the letter appears to have a few hundred signatories from law schools around the country. (See letter draft and signatory list [1]here.) No doubt this letter will be presented to demonstrate an academic "consensus" in support of the constitutionality of the filibuster, the importance of protecting a partisan minority's role in the advise and consent process, and the harm of altering long-standing Senate rules by majority vote. I find the law professor's letter quite troubling, but not because of its substantive claims. I have been quite critical of the unprecedented filibuster of President Bush's appellate nominees. Yet I remain unconvinced that eliminating the filibuster is either a prudent or principled response. My misgivings about the letter derive from another concern. The letter makes numerous claims about constitutional history and original intent about which there is substantial debate. Academics and other scholars disagree on the Framers' intent with regard to the judicial confirmation process. By signing on to the letter, law professors signal that they agree with a particular side in this academic debate; they are holding themselves out as academic authorities and saying, in effect, "We, as scholars, believe this is wrong for historical and constitutional reasons." The letter enables opponents of the nuclear option to cite non-political grounds for their opposition. This is what's wrong with the letter. It is clear to me that many of the signatories (including several I know rather well) have signed onto the letter without any particular knowledge or expertise on these issues. That is, I believe many who have signed the letter did so not because they believe the specific historical and constitutional claims are accurate but because they support the end result: Maintaining the filibuster so as to block President Bush's nominees. In other words, they are asserting their academic expertise and reputational capital in an area about which they have no particular academic expertise. This is not true with all of the letter's signatories, to be sure, but it is true of enough to taint the entire project. There are many fine scholars on the list, but their expertise on gender equality, human rights, or wetlands regulation hardly make them qualified to speak with academic authority on the history and desirability of the filibuster. The willingness of so many academics to stake their academic reputations on claims about which they have no expertise is troubling. It is but one example of how many in the academy put politics over scholarship. Alas, the costs are not solely born by those who sign such letters. In the end, the stain from acts like these tarnish the reputation of legal academia as a whole.
References 1. http://www.mail-archive.com/[email protected]/msg03166.html _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
