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Here is your grade for Legal Realism 101



A friend just reminded me of the existence of this document.  Here are some highlights:

We are a diverse group of scholars with a wide range of backgrounds, and we hold both liberal and conservative political views. We are united, however, in the belief that Judge Gorsuch will bring the highest judicial standards to the Court. Although we may not agree with each decision or vote he will cast, we all agree that Judge Gorsuch is eminently qualified to serve on the Court and that his jurisprudence is within the mainstream of contemporary legal thought.

Yes, after decades of filling the courts with reactionary neo-confederate judges, such views are now absolutely within the mainstream of contemporary [American] legal thought.  Now for those who agree with those views, that represents a wonderful legal and political outcome — one that makes even such an outrage as the election of Donald Trump a price they are willing to pay.

But what of the many, many liberal legal scholars who signed this letter (and there are dozens)?  Are they pleased with this development?

Judge Gorsuch is widely known for his fairness and integrity, his analytical rigor, and his persuasive writing.

I call bullshit.  Gorsuch is a federal appellate judge who writes federal appellate opinions that read exactly like the federal appellate opinions of any other judge who holds his jurisprudential views.

As scholars of the law, we can attest that the law is full of gaps and ambiguities that can bedevil the most careful thinkers.

Yes, and what fills those gaps?  Hint: it’s a word that starts with a “p.”

But Judge Gorsuch has handled this complexity with great skill, and his opinions stand out for their learned quality.

Again, bullshit.

In writing them, he routinely draws on law review articles and other scholarship,

Oh good Christ.

His wide-ranging intellect is equally on display in his extra-judicial publications and speeches, which include an academic book that grew out of his doctoral research

Which included a significant amount of plagiarism.

In closing, we note the costs of playing politics with judicial nominations.


In his 2016 Year End Report, Chief Justice Roberts asked “why any lawyer would want a job that requires long hours, exacting skill, and intense devotion – while promising high stress, solitary confinement, and guaranteed criticism.”

Laugh or cry? As if 93% of the people signing this letter wouldn’t do violence in their grandmothers’ neighborhoods to be in Gorsuch’s patent leather shoes.

The political gauntlet that judicial nominations have become – highlighted most recently by the Senate’s outright refusal to consider the nomination of Judge Merrick Garland, also a brilliant judge eminently qualified for the Supreme Court – underscores this concern.

HAHAHAHAHAHAH. Oh my God make it stop please.

Senators of both parties employ arguments to delay and block nominees of the other party’s President, only to denounce these tactics when political fortunes are reversed.

Both sides! It’s not just for NYT political reporters any more.

Is our law professors learning?


Judge Gorsuch has impeccable qualifications for a seat on the Supreme Court. His views fall well within the bounds of modern jurisprudence. Senators from both parties recognized this fact the last time he was nominated, confirming him quickly and without controversy. We urge the Senate to do so again.

Again, along with the usual Federalist Society suspects, dozens and dozens of liberal law professors, some of them prominent people within the legal academy at least, signed this thing.  And again, while I can understand perfectly well the strategic considerations that led the former to sign on to this nonsense, what excuse do the latter have?

. . . commenters reminded me of this, which should be brought up immediately every time Katyal’s name gets floated for every SCOTUS nomination that comes up under every Democratic president over the next twenty years, assuming we still have elections and courts and stuff.

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