By Eric Segall
As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn't help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms. In this post, I raise a few questions and suggest a few tentative thoughts, but, with one exception, do not provide strong opinions.
I hope that most law professors would agree that our first and most important role is to teach, educate, and prepare students for the practice of law. We also need to provide service to our schools and universities and of course engage in meaningful legal scholarship (what counts as meaningful I leave for another time). But these days law professors seem to be weighing in on current events in a myriad of different public ways that I am not sure help the profession or the country.
Let's start with law professors testifying in front of Congress. To the extent that body still passes meaningful legislation and is considering bills with technical legal implications such as statutes dealing with bankruptcy, the environment, or securities regulations, members of Congress hearing from legal experts in those specialized fields is a good idea. I take that role for law professors to be relatively non-controversial (I discuss the impeachment hearing at the end of the post).
What about law professors testifying at confirmation hearings for Supreme Court Justices? Professor Lawrence Solum testified about originalism at the then Judge-Gorsuch hearing, and Akhil Amar and others testified in favor of Brett Kavanaugh at his hearing. My tentative view on this practice is that if Congress wants to hear about the character, integrity, and legal acumen of nominees to the Court, then law professors with personal knowledge concerning the nominee might provide helpful information. But there are also some serious issues here.
Should law professors who litigate before the Supreme Court testify on behalf of future Justices? Or maybe an even harder question is should or will law professors testify against a nominee whom she may appear before in the near future? Whatever the answers to those questions, I do not think law professors should testify about the alleged theoretical commitments of nominees and whether such commitments are good or bad (this is the one exception to my no strong opinions pledge in the first paragraph). Being the legal realist that I am, and given that we are talking about Supreme Court Justices, such discussions mislead the public into thinking those commitments matter more than the nominees' politics, values, and experiences. Professor Solum told Congress about Gorsuch's self-professed fidelity to originalism, but Gorsuch has already shown in just a few years that his fidelity to conservative causes (outside of criminal procedure) and his other priors are much more important to how he votes than his alleged commitments to originalism. Even if you disagree with my legal realism, almost everyone thinks these confirmation hearings have turned into ridiculous political charades and until that changes, I am not sure law professors should dignify them.
Law professors write and sign amicus briefs all the time. This trend, in fact, may have gotten out of hand. Between 1900 and 1950, amicus briefs were filed in only about 10% of Supreme Court cases. By 2000, that number was 85%. Many of these briefs, of course, are not written by law professors, but we obviously have contributed substantially to this deluge. In the case this term in which the Court will decide whether Title VII protects gays and lesbians from sexual orientation discrimination, about a dozen amicus briefs were submitted by legal scholars from all sides of the political spectrum.
If a law professor has expertise in a specific subject area and can contribute to a better Supreme Court argument and decision, there doesn't seem to be much harm to this flood of amicus briefs. But then again, we are supposed to be, I think, primarily academics not advocates, and I'm not sure how often we should blur those roles. Writing amicus briefs for major Supreme Court cases takes a lot of time, work, and energy. When we address the same matters in class, maybe we have more expertise, but we also have much more of a personal stake. I am not sure that professors having a vested interest in the resolution of major Supreme Court cases is in the best interests of our students.
In any event, many law professors sign on to amicus briefs that they didn't write or even play any meaningful role in drafting just as a show of support for one side or the other. I am skeptical of this practice and not sure it adds to the integrity of the profession. I have done this occasionally in the past but have decided not to sign on to any more amicus briefs unless I actually helped draft the document.
Last week I received a request to sign a letter on behalf of a group of law professors, many my good friends, taking the position that President Trump engaged in impeachable conduct (disclosure Mike signed that letter). These requests have been coming much more frequently. Over 2000 law professors signed a letter saying Brett Kavanaugh's demeanor at his confirmation hearing should have disqualified him for getting the nomination (disclosure: Mike and Neil were two of them). That demeanor question, quite obviously, does not implicate legal expertise.
Whether law professors should sign such letters may depend on whether they teach at a public or private law school. Of course, all of these letters (and amicus briefs) come with the disclaimer that the academic is signing in his or her personal capacity and nothing in the letter or brief represents the views of the institution where the academic works. Still, there is something unsettling to me about Georgia taxpayers paying my salary, which gives me the reputation and added credibility of a law professor, so that I can, in my individual capacity, take positions on divisive legal and political issues. I am not suggesting law professors at public schools should be barred from taking such positions or penalized for doing so (academic freedom and all) just that maybe the better judgment is to avoid them absent unusual circumstances. I certainly don't live by this principle but I am giving it more thought every day.
I think letters like the ones above are different than requests for law professors to share specific expertise. For example, I have been teaching federal courts for 28 years and feel fairly comfortable with most federal jurisdiction issues, especially standing, which I have written a lot about. I have assisted litigators in the past with standing issues related to the filibuster and recently the Emoluments litigation. My intuition is that work is different than opining on Kavanaugh's demeanor, or whether Trump's efforts to get Ukraine to announce an investigation into the Bidens is an impeachable offense. But maybe that is an arbitrary line.
Even law professors at private schools should be sensitive to taking publicly controversial positions that could alienate alumni, donors, and even current students. I once wrote an op-ed with Dick Posner for the New York Times harshly criticizing Justice Scalia. Of course, law professors write these types of op-eds and essays all the time. After that op-ed was published, an attorney at a prestigious Atlanta law firm asked me whether I shared my harsh views on Justice Scalia with my students. His point was that I was damned if I did and damned if I didn't. Disclosing the bias seemed to him problematic because it could negatively effect the learning environment in the classroom but not disclosing the bias wouldn't be honest.
My response at the time was that given my scholarly work on Justice Scalia, I felt obligated to share my bias with my students while at the same time promising to teach both sides of all opinions, including Scalia's as objectively as I could under the circumstances. I think I can defend my critiques of Scalia given my constitutional law focus and experience, but the same defense would not apply to the letters concerning the Kavanaugh hearings or the impeachment letter.
Many law professors write op-eds, essays, blog posts and magazine articles, and use social media platforms to express their views while also appearing on radio and television. I have done all of those things over the last decade. Should law professors aspire to be, at least in some sense, public intellectuals? I try very hard to distinguish my opinions based on scholarly expertise from my non-scholarly "I'm just a concerned citizen," opinions. But do the former dilute the latter? Maybe. Also, who am I to spout off on non-constitutional law, non-federal jurisdiction questions? There is a little arrogance in all of that, and at times I wonder whether the negatives outweigh the positives.
Finally, what about the four law professors who testified at the impeachment hearing last week? I have mixed feelings about what turned into somewhat of a spectacle. On the one hand, I understand why having experts testify on the history of prior impeachments might be helpful to the Congress and the country. But of course the testimony of all four went well beyond that subject to the very question whether Trump committed impeachable offenses and other issues. Congress is a political body making political decisions. Whether to impeach a President might be one of the most political issues of them all. Bringing in legal experts so that one political party can ask wildly leading questions in favor of impeachment while the other side tries to dilute the experts' opinions through personal attacks and ad hominem unpleasantness seems quite unproductive (those roles would be reversed were the political sides flipped). I am not sure that adding a thin veneer of legal analysis to a fundamentally political hearing is a good idea.
Is there a direct conflict between law professors as legal educators/academics and law professors as political and social commentators? Probably not. But I am worried that partisan and even legal advocacy on important current issues may interfere with our academic responsibilities in some unhealthy ways. In any event, these are all questions that I think merit serious consideration by the legal academy.