Professors Stearns and Henry Host Kavanaugh Discussion

October 05, 2018

Stearns and Henry at Kavanaugh Discussion

The University of Maryland Francis King Carey School of Law community was invited to the Ceremonial Moot Courtroom for an informal discussion on the nomination of Judge Brett Kavanaugh to the United States Supreme Court and the issues raised during his confirmation hearings.

Maxwell Stearns, Venable, Baetjer & Howard Professor of Law and Professor of Law Leslie Meltzer Henry offered their thoughts on the hearings before facilitating a larger discussion with the audience.

Stearns focused his opening comments on several problematic claims that have been advanced in the social, print, and other media concerning the confirmation processes. These include representations related to presumption of innocence respecting allegations of potential criminal conduct in political versus criminal law proceedings; the nature of the advice and consent processes from the perspective of judicial candidates; the relevant standards with which Senators may review testimony and related evidence; the scope of the confrontation clause; the scope of the FBI’s investigatory authority, and more. (Stearns has explored these and other related issues in greater depth on his blog, www.blindspotblog.us.)

Henry addressed the aftermath of the Senate Judiciary hearings and the potential long-term effects they may have on the legitimacy of the Supreme Court. She noted that historically the Senate has voted unanimously, or by very large majorities, to accept nearly all Supreme Court nominations. She then explored the potential implications that the Senate’s revised cloture rule—invoked during now-Justice Gorsuch’s confirmation process—may have on the Kavanaugh proceedings. The rule might result in Judge Kavanaugh becoming the first justice appointed to the Supreme Court with a simple majority vote, further contributing to the already politicized and divisive nomination and confirmation process. One potential consequence is exacerbating the erosion of public confidence in the Supreme Court as an apolitical or non-partisan institution.

Following their remarks, Stearns and Henry fielded wide-ranging student questions about the political process of Supreme Court nominations; the effect of this nomination, should it succeed, on perceptions of judicial neutrality; the legitimacy of the Supreme Court; and issues concerning judicial temperament.

At the end of the event, dozens of conversations continued outside among faculty, staff, and students. Organizer of the event, Associate Dean for Research and Faculty Development Michael Pappas, was pleased with the outcome, saying, “There were two very thoughtful takes and an opportunity for students to deeply engage with an issue so important to them as citizens and as members of the legal profession.”