Professors as pundits

[Scott Gerber]

I realize that Professor Levinson's post wasn't meant to be exhaustive, but I think it's
important to point out that ideological disputation about Supreme Court nominees traces all the
way back to the pre-Marshall Court.  For example, John Rutledge lost his bid to become chief
justice because a majority of the senate didn't like what he said about the Jay Treaty.  See
Seriatim:  The Supreme Court Before John Marshall, just re-released in paperback by New York
University Press.

Scott Gerber



------------------------
  From: Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU>
  Subject: Re: Professors as pundits
  Date: Mon, 27 Nov 2000 20:50:02 -0600
  To: CONLAWPROF at listserv.ucla.edu


Am I the only person who was more than a bit perplexed that Professor John
Yoo told the readers of the New York Times, in a recent op-ed piece about
the Supreme Court as an object of political debate, that ideological
disputation about Supreme Court nominations began with the Democrats'
attack on Robert Bork?   Is neither he nor any editor of the Times aware
(for starters) with the rejected nominations of Clement Haynsworth, Abe
Fortas (defeated by a Republican filibuster led by Strom Thurmond), John
Parker, or, for that matter, Roger B. Taney the first time around.  And, of
course, Charles Evans Hughes was vigorously attacked on ideological grounds
when nominated for the Chief Justiceship, as was Louis Brandeis when
nominated for the Court by Woodrow Wilson.  (Ideology may not have been
Brandeis' only sin!)  There is also the extended delay visited upon
Thurgood Marshall with regard to his nomination to the Second Circuit.  It
is certainly convenient for conservatives to believe that it all started
with Teddy Kennedy in 1987; for better or worse, though, that is simply
untrue.   I'm not suggesting that Republicans started it.  Who knows who
fired the first shot?  The point is that ideological disputation about the
court is as American as apple pie.

Mark Tushnet has written in the past about the lax standards to which law
professors seem to be held when making historical assertions.  ("History
lite," Marty Flaherty calls it.)   And Richard Posner has recently attacked
"public intellectuals" (who are increasingly drawn from the academy) for
their own failure to conform to the standards they ordinarily meet when
behaving as "real" scholars.

I suppose I should feel guilty for jumping on Professor Yoo twice in a
week, but he has had remarkable access (which no doubt evokes jealousy in
some of us) to the pages of first the Wall Street Journal and then the New
York Times to educate readers about the current debate.  With power comes
responsibility....

sandy levinson


---------------End of Original Message-----------------

-------------------------------------
Name: Scott Gerber
E-mail: sdg at rwulaw.rwu.edu
Date: 11/28/2000
Time: 07:18:17

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