At the Volokh Conspiracy, Juan Non-Volokh comments about the latest letter sent around the law school community for joining signatures. The letter opposes the Republican threat to trigger the “nuclear option” by ending filibusters of judicial nominees. I have an extensive post forthcoming on the subject in this here space, and I oppose ending them, at least on the basis advanced by the Senate Republicans. But I have not signed the letter, because I dislike signing on to every proposition in such a letter, including those assertions on which I have no considered judgment, simply because I agree with its gist.
Non-Volokh suggests that because the letter contains a host of debatable constitutional assertions of no little complexity, it cannot be the case that everyone has really reached a considered conclusion on the points raised therein. “In other words, they [the signers] are asserting their academic expertise and reputational capital in an area about which they have no particular academic expertise.”
This is a debate that has been ongoing since the Clinton impeachment and the 2000 election dispute. What obligations do academic signatories have to satisfy themselves they agree with the assertions contained in such a letter or petition? Since the debate has been ongoing (and well-canvassed by Posner, Ward Farnsworth, Cass Sunstein, and others), I thought it might be worthwhile asking any academic readers (or prospective academics) whether that debate has changed anyone’s minds.
Are you now less likely to sign such letters? To give them more considered attention before signing them? To quibble with the drafting but sign on regardless of the outcome of those discussions about content? Or …
are you as likely to sign one as you ever were? And why? Do you believe yourself to be asserting academic expertise, or just exercising your right as a citizen to engage in the political process? If the latter, why associate as a group of law professors for the purpose, and include your academic affiliation? If the latter, why take such a letter any more seriously than a letter with the same content, signed by plumbers?
My own sense is that this debate will make only a marginal difference. A few more potential signers will have been sensitized to the issues by the discussion that has taken place in the law reviews and on blogs in the past few years. They will read such letters more carefully before signing them. But my brief survey of the signers on this letter suggests that many of the same old folks will happily continue to sign such letters where they are compatible with their political views. That certainly includes a number of folks who I know don’t teach in constitutional law, and will have no more expertise as to the assertions made in these letters than would any reasonably intelligent person who makes a habit of reading op-eds. (In the interests of candor, I see on the signatory list a number of non-con-law colleagues from my own fine institution, whom I respect a great deal on a personal and professional level.)
To the extent this continues to be the case, I think the scholars are welcome to sign the letters, and the Senate should do what it always should do in such cases: consider the truth of the claims made in the letter and simply ignore the names of the people who have signed it. You can’t demand deference to an expertise you can’t fairly claim. Or they can ignore the claims in the letter and count the names of the signers, simply to see how many potential voters they are losing — which in this case is, in comparison to the whole population and the past votes of these signers, a number at or approaching zero.
Posted by Paul Horwitz on April 21, 2005 at 04:04 PM
Comments
I think you are missing the point. You are not obligated to do anything. If you want to sign a petition without knowing what it really says, go ahead and do so. If you will only sign a petition assuming you understand it fully, and assuming you agree with every nuance, go ahead and do so. The point you are missing is that the petition is meaningless unless the public/media/recipients of the petition THINK you agree with it fully, and are offering your professional endorsement of its contents. If they don’t THINK that, then your petition is no more valuable than if a group of plumbers signed the same thing. And the follow up point is that the public/media/recipients don’t THINK you are doing so, so the petition itself is irrelevant. Its not through any fault of your own, its because of the politization of everyone and everything. If a petition is circulated, signed by diplomats, opposing John Bolton, does anybody really assume they are offering professional judgement rather than personal, political judgement? If a petition is circulated, signed by doctors with the AMA, supporting gun control, does anybody really believe they are expressing a professional (rather than political) opinion? In essence, the ‘system’ has broken down, and given a viewpoint with a political consequence, it is given that the petition represents political, rather than professional opinions (or rather, it is a given that the petition WILL BE PERCEIVED as representing political, rather than professional opinions). And that being the case, the petition serves no function other than to make the signees feel good. So do whatever you want.
Steve
Posted by: Steve | Apr 22, 2005 9:35:58 AM
I think Kaimi makes fine points. But the value of group letters speaks to the “what.” The devil, however, is in the “why.” If a letter is fairly general on the “why,” then everyone who agrees with the “what” can feel comfortable signing. Indeed, any citizen could feel comfortable signing. The question, as Nate’s comment suggests, is whether signing also signifies that you agree with the assertions made as to “why” — and whether you are not only asserting general agreement with the “why,” but some degree of special knowledge based on expertise.
Note that my original question was whether, in light of precisely these kinds of debates, actual practices on the ground have changed. I’m still curious on that point.
Posted by: Paul Horwitz | Apr 21, 2005 7:10:07 PM
One thing that a group letter allows is for pooling of resources and filtering in a way that might not otherwise be available.
For example, assume that there are three law profs. They have the following preferences:
Prof 1: A. Markel should be confirmed as a judge. B. Wenger should be confirmed as a judge. C. Taxes should be raised.
2: A. Markel should be confirmed as a judge. B. Wenger should _not_ be confirmed as a judge. C. Taxes should be lowered.
3: A. Markel should be confirmed as a judge. B. Hoffman should not be confirmed as a judge. C. Sugar tarriffs are too high.
Now, if each of these fellows writes a separate letter, there’s enough noise, and enough divergence, that it might be easy to miss the fact that they unanimously agree on (A). But if they join a group letter, they can focus on points of agreement without necessarily introducing extra noise information.
Of course, that may not be how it works in practice, but it seems like one reason why group letter might make sense.
Posted by: Kaimi | Apr 21, 2005 7:04:52 PM
Dan: I think that the problem lies in the way that these petitions are used. They are generally invoked in political debate — when they are invoked at all; and I used to work on the Hill and have great faith in the ability of legislators to ignore petitions — as evidence of expert opinion. Indeed, it is expertise that lends authority to the prof’s letter, otherwise it is just another piece of mail sent to the Senator, destined for the franked form-letter reply and the circular file. To the extent that anyone cares what these letters say it is because the signatories, as experts, are vouching for the quality of the arguments put forth. This, I think, is the bed-rock political reality behind these things. Hence, to the extent that professors sign them without necessarily either (1) having the requisite expertise; and/or (2) actually subscribing to the arguments put forth (as opposed to the idealogical flavor or political outcome), they are — regardless of the stories they tell themselves — acting in a dishonest and duplicitous way. (Not hugely dishonest or duplicitious mind you. We are not talking about mortal sins here.) The reason is that the meaning of what they say is not a matter of their intention, but of the shared social meanings in which they operate. I would argue that within this context, such letters will always be understood as an assertion of authority based on expertise.
Posted by: Nate Oman | Apr 21, 2005 7:02:30 PM
A good analogy — too close to home! — but not, I think, directly on point. D is saying, “On the strength of the signals and his recommendations, I am willing to invite AA1 to blog.” D is not saying, “As an expert, I endorse the positions of AA1.” On your facts, D could not say that, because he lacks the knowledge to do so, and so relies in part on others. That is arguably — I stress arguably, for that is the point in contention — what the signature on a letter or petition says. Also, a group blog is just that — a congeries of opinions — while a letter with multiple signatories arguably commits each signatory to one single set of words. Now, group bloggerhood may constitute the general view of the group that all the bloggers are worthy and none are beyond the pale. But is that really all a signatory is saying about the letter s/he signs?
Posted by: Paul Horwitz | Apr 21, 2005 6:54:03 PM
“If they’re not signing as quasi-experts, though, what are they saying? “We, the undersigned, trust Cass?” Why is a group endorsement of Cass, but without the underlying knowledge on the part of the signers, worth more than Cass alone?”
My sense is that we make these kinds of judgments all the time and they are not without foundation. Indeed, here’s a useful example: say D starts a group blog and wants to achieve credibile reputational gains and have fun with it. Say D’s blog has a good start and D is asked by AA1 if AA1 may join the blog. If D doesn’t know AA1 from AA2, then AA1 is going to have a hard time (though not impossible time) persuading D to take AA1 on as a blogger–unless D trusts E, who says, hey, AA1 is a good woman, you should let her blog with us.
Now if AA1 presented no evidence of good blogging skills but D took on AA1 only on E’s recc., it would be rash. But if AA1 presented good evidence of being a good blogger, and E supported AA1’s candidacy, then D would be silly to ignore the signals…or is D wrong on your view? Or is the hypo not analogous?
Posted by: Dan Markel | Apr 21, 2005 6:43:12 PM
Dan, I’m not sure. I don’t think it’s a problem to circulate an amicus brief for signatures, certainly; you wrote the thing and presumably think you were making colorable arguments. On the signatory side, is it enough simply to conclude either that the positions are good enough for government work, even if you don’t agree with all of the assertions or aren’t sure whether you do or not? Is it enough if you conclude that you surely don’t know whether you can support all of the assertions, but you trust in the reliability of the person who write the letter/petition/brief? I’m not sure precisely where the bar should be set, but if the act of signing is to have meaning, it must convey some signal about the signer’s confidence in the assertions made, and I’m not sure that implicit confidence in the drafter alone should suffice.
One way to think about this is, are you signing as a lawyer or as an expert? What I mean by this is, are you saying that you think the letter makes non-frivolous arguments that you would be content to make as an advocate, or are you giving your opinion as an expert, in which case you ought to be prepared to defend all the assertions made in the letter in the event you are deposed or called as a witness? I had thought that the signers of a letter were closer to the latter than the former, though I suspect that the specific bar I have mentioned here may be too high. If they’re not signing as quasi-experts, though, what are they saying? “We, the undersigned, trust Cass?” Why is a group endorsement of Cass, but without the underlying knowledge on the part of the signers, worth more than Cass alone?
I agree that the signers may think they know more than the average intelligent reader, though I’m not sure that belief would be correct. If that’s the case, though, perhaps it speaks to the obligation of the drafters of such letters: notwithstanding the willingness of lots of folks to sign a letter on an issue of political moment, if you are going to broadly circulate it, confine your points to the non-controverted, well-supported, and relatively general, rather than enlist willing signers for a series of fine assertions you conclude they are not qualified to make.
Posted by: Paul Horwitz | Apr 21, 2005 6:31:21 PM
These are good points Paul. FWIW, I’ve been on both sides: as signatory and solicitor. The other day the crimprof list circulated a letter urging Congress not to adopt a hasty fix after Booker (viz. sentencing guidelines); not all of us agreed on the right remedy, and not everybody was a crim pro specialist, but all of us thought that we did not need another virus like the Feeney Amendment slipped through Congress w/o sufficient consideration. Last summer, I gathered signatures for my amicus brief in the shaming case in the 9th Circuit. Many crim profs signed on as did a few con law people. I think part of the reason non-specialists sign on is because they (think they) know something more about the area than the average “intelligent” person reading an op-ed, even if it’s not the same amount as a specialist. Another reason is that they trust the judgment of the specialists, and so perform a “vetting” or signaling function for the Senate. I.e., if Ted Kennedy trusts Tribe, and Tribe trusts Sunstein, then a letter that both Tribe and Sunstein write will have more sway with TK than a letter by Sunstein alone. That’s not a bad way for Tribe to channel capital, nor does it seem like a great mark of shame on the Republic if this is how some decisions are made. Am I wrong?
Posted by: Dan Markel | Apr 21, 2005 6:14:27 PM