by Thomas Wheatley
-- the statement is nothing more than an expression of the professors' political and personal preferences, not the product of a well reasoned legal analysis.
Recently, a group of 1,400 law professors signed onto a public statement addressed to the Senate Judiciary Committee condemning the nomination of Senator Jeff Sessions to the position of attorney general. The statement was published in anticipation of Sessions's impending confirmation and included a string of allegations. To wit:
Some of us have concerns about his misguided prosecution of three civil rights activists for voter fraud in Alabama in 1985, and his consistent promotion of the myth of voter-impersonation fraud. Some of us have concerns about his support for building a wall along our country's southern border. Some of us have concerns about his robust support for regressive drug policies that have fueled mass incarceration. Some of us have concerns about his questioning of the relationship between fossil fuels and climate change. Some of us have concerns about his repeated opposition to legislative efforts to promote the rights of women and members of the LGBTQ community. Some of us share all of these concerns.I am not a "Trumpkin." I did not support President-Elect Donald Trump's campaign, did not vote for him (nor Clinton), and have in fact publicly criticized him. Likewise, I have no personal interests or loyalties aligning with Senator Jeff Sessions's nomination.
Specifically, the statement's imprecision – at once obvious in its generous use of the phrase "some of us" – is suspect; surely the accomplished scholar who authored the statement would not engage in such character assassination without a more concrete base of support. The statement's vagueness permeates further, ultimately devolving into broad accusations more akin to Democratic talking points than serious claims by a body of legal scholars.
Indeed, the statement's only specification concerns a "misguided prosecution of three civil rights activists for voter fraud in Alabama in 1985." That case, which Sessions oversaw as a federal prosecutor, involved a group of black voters and election officials accusing three defendants (also black) of unlawfully altering absentee ballots. The accusation arose in Perry County, Alabama, an area that only two years earlier had struggled with voter fraud targeted at the "aged, infirm, or disabled" (the problem was so severe that the predominantly black constituency called for federal intervention and "vigorous prosecutions of all violations of the voting laws"). A subsequent examination determined that the ballots had in fact been altered, and the defendants, who were later acquitted, admitted they had performed the alterations (they believed they had acted lawfully). Even the son of one of the defendants in the case – a black Democrat who has endorsed Sessions for attorney general – said Sessions is "not a racist" and that Sessions "wasn't on a witch hunt to seek out my father and my mother."
Why all the vagueness in the law professors' statement? It could be that the professors are out of their depth and cannot help but understand all sporadic hearsay involving "insensitivity" and disagreement with civil rights activists as per se racism. Or perhaps the professors are unsure of the soundness of their accusations; what little substance I found supporting the professors' (apologies – "some" professors') position is at best circumstantial.
My guess is that the professors must remain equivocal because the statement is nothing more than an expression of the professors' political and personal preferences, not the product of a well reasoned legal analysis. The devil is always in the details; if the professors were more explicit in their allegations, their seemingly obvious moral assertions would become less universal, exposing the statement's underlying bias. The statement could no longer masquerade as an opinion on a question of law to which society owes professors of law a special deference; instead, it would be a personal belief, to which society owes nothing.
Students of these professors should be extremely wary. It takes a seasoned coward to hide a fallible personal conviction behind an intimidating title like "Professor of Law," and if these professors are comfortable doing so in a public forum, there is little doubt they are comfortable doing so in the relative privacy of the classroom.
Being a law student is a vulnerable position. Because students cannot possibly replicate a professor's decades of research in just a few months, they are frequently forced to trust their professors at their word – at least until students develop the legal acumen to meaningfully challenge their professors. In exchange, professors must be entirely forthcoming about the law, even if doing so reveals ideas contrary to their personal beliefs.
No doubt bearing such an extraordinary level of trust is a tremendous honor. Unfortunately, honor seems to be out of style for the 1,400 professors who signed on to this statement. Hopefully, their students are not taking notes.
Thomas Wheatley is a law student at the Antonin Scalia Law School in Arlington, Va. Follow him on Twitter at @TNWheatley and email him at firstname.lastname@example.org.
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