Letters to the Editor: 10-24-18

Letters of interest to the Law School community may be sent to editor@lawweekly.org. Letters may be published at the discretion of the Editorial Board and are subject to editing for grammar, style, and clarity, but not content or viewpoint. The Law Weekly does not necessarily endorse the content or viewpoint of any letter herein published.  

Kavanaugh: Neutrality Matters

On October 4, a letter signed by more than 2,400 law professors was submitted to the U.S. Senate opposing the confirmation of Brett Kavanaugh because he “displayed a lack of judicial temperament” during the hearings held on September 27. We want to talk about something different, but related, namely how Judge Kavanaugh chose to speak in public about the issues surrounding his confirmation.  There are two features of Justice Kavanaugh’s testimony that we want to address. We write as scholars who feel called to nurture the rule of law, but also as teachers who are devoted to your education and who care about your personal flourishing.  

First, we fault Justice Kavanaugh for so angrily displaying his alignment with the extreme partisanship being expressed around him.  Judges have prejudices and political preferences like anyone else. Good judges are better at limiting the improper influence of their prejudices, but one would be naïve to think they always succeed. What is especially regrettable in this case is that Justice Kavanaugh so violently displayed his own partisan preferences, which had the effect of associating him with the partisan voices surrounding his confirmation.  We live in a moment where the institutions of our democracy seem fragile; they are viewed with unrestrained cynicism and the only motivation anyone can imagine is the will to power. And so, some celebrate Kavanaugh’s performance as the unveiling of truth. We do not feel that way. It may well be that judicial virtues are rare, but if we do not even aspire to them, if we do not even expect the public performance of impartiality, then we have given up too much. Some of you will become judges and most of you will become lawyers. We hope that, as graduates of UVA Law, you will inspire others about the possibility of fairness and impartiality in the law with your words as well as your actions.  

Second, and of even broader significance, we lament the way that Kavanaugh’s rage and defensiveness elevated him and his own sense of persecution above all else. We assume that Kavanaugh does not believe that he assaulted Professor Ford and we do not trivialize the feeling of being unjustly accused of heinous crimes. His behavior would be expected of anyone coming to terms with such accusations in the privacy of their own home. However, venting his rage publicly wasted an opportunity to demonstrate grace and understanding about the trauma that no one doubts Professor Ford experienced. The purpose of the hearing was, of course, to vet Kavanaugh for the Supreme Court. It is entirely appropriate that he defend himself against accusations that he believes false. But the consequences of our public conduct go beyond the narrow purposes at which that conduct is directed. Responsible, wise people who care about others consider those other consequences.  

There was an opportunity to make the hearing not only about his anger about his reputation being besmirched, but to show compassion to a woman who clearly believed that she had been assaulted by him. Such compassion is noble on the part of one who deems himself unjustly accused. But compassion is an important, even essential attribute for those of us who will be hearing and defending the rights of others.  Professor Ford’s testimony prompted women all over the country to relive their own assaults, and in certain places, on social media and elsewhere, you may have seen the torrent of human suffering. Kavanaugh is not responsible for all of this, but he is responsible for the example he set of how to respond to credible accusations of sexual assault and the essential role of law in addressing those accusations.    

And so we pose the question: how would Kavanaugh have responded if he thought not only about his reputation, but also about dampening the partisan fever surrounding his hearing and about Professor Ford and the millions of victims of sexual violence? How would the substance of his comments have differed? How would his tone have differed? Perhaps this is a lot to ask, but it is not too much to ask, and it is something that we should all aspire to. 

— Professor Barbara E. Armacost ‘89 and Professor Andrew Hayashi

Scalia Deserves a Law School Portrait

When Dean Goluboff was welcomed as the twelfth dean of the University of Virginia School of Law, she emphatically stated that the faculty at UVA “are among the finest anywhere.” Our academic experience thus far permits us to concur in that judgment in full. But the law faculty did not become exceptional overnight. Rather, the faculty has been shaping and molding young, ambitious minds at a level unsurpassed by peer institutions for decades. One needs just walk the halls to recognize the truth of this claim.  
The walls of law schools around the country are adorned with the stern, lifelike painted faces of academics, intellects, and influential alumni. UVA Law is no exception. Portraits immortalizing professors and alumni fill the walls of Slaughter Hall, the alcoves of the library, and the classrooms of Withers-Brown. The portraits recognize the contributions the school’s faculty and alumni have made to the Law School. But they also serve an important additional purpose. The portraits provide the onlooker a vivid reminder that the law is just as much about the diversity of individual lawyers’ thoughts, dispositions, and idiosyncrasies as it is about rules, precedents, and theories of interpretation. Justice Oliver Wendell Holmes said it best that “[t]he life of the law has not been logic: it has been experience.” 

One such life experience was recently commemorated by the law school. The legacy of Gregory Swanson—the law school’s first black student—his career contributions, as well as his courage and perseverance in the face of racial adversity, was rightfully recognized this past spring at a ceremony revealing his portrait, which is on permanent display in the law library. We were glad to see Mr. Swanson receive the appreciation he deserves for fighting for civil rights in the Commonwealth of Virginia and for the equal protection of all Americans. Reflecting upon portraits of alumni like Mr. Swanson makes us proud to be Wahoos.  

We encourage everyone to spend a few minutes wandering the halls to inspect the portraits of those who have taught at and graduated from the Law School. You may be surprised to discover that a portrait of the country’s twenty-eighth president, Woodrow Wilson, hangs in the library. Moreover, the portraits of Elizabeth Nelson Tompkins ’23, one of the first women admitted to the law school, and John Barbee Minor, a professor at the school for nearly half a century, greet library visitors at the entrance. However, despite the recognition of numerous alumni and former faculty members, a commemoration of a man who is one of the school’s most noteworthy former professors, and one of the most influential jurists of the last half century, is nowhere to be found. 
The late Associate Justice Antonin Scalia taught at the law school from 1967 through 1974. In addition to teaching, then Professor Scalia made it a priority to have a good relationship with students. Then-Professor Scalia officiated the Virginia Law WeeklyVirginia Law Review football game—a tradition that we hope to revitalize next year—demonstrating his commitment to cultivating a sense of community at the school. And in 1983, he helped establish The Journal of Law & Politics, a journal that continues to play an influential role in legal academia. Professor Scalia’s affinity for the law school did not end when he donned a robe. During his thirty years on the Supreme Court, Justice Scalia hired eight law clerks from UVA Law. He frequently returned to Charlottesville to give speeches. And a number of his former clerks now teach at the Law School. In recognition of his many contributions to the University, Justice Scalia received the Thomas Jefferson Foundation Medal in Law, the highest external honor bestowed by the University of Virginia.  

After Justice Scalia’s death, then-Dean Paul Mahoney wrote in the Virginia Law Review about Justice Scalia’s love for, and contributions to, our community, which includes a video appearance in the Libel Show. Dean Mahoney also mentions that Justice Scalia returned while on the bench to commemorate the life of Dean Emerson Spies, for whom Spies Garden is named. Justice Scalia’s devotion to our Law School was evident in that speech when he noted that “the institution that Emerson Spies helped to shape, the lawyers he helped to form, will continue to reflect his good work for many years to come.” The library currently has an exhibit showcasing the indelible impact twenty-four former professors, including Justice Scalia, had on the intellectual community at the law school. However, Justice Scalia’s legacy and his commitment to our school deserves permanent recognition.  
Associate Justice Ruth Bader Ginsburg, whose photograph graces the wall in front of Caplin Pavilion, eulogized her “best buddy on the court” by recalling the time he reminded her, in a lone dissent, that “there is only one University of Virginia.” You can disagree with Justice Scalia, but we all should honor his many contributions to the Law School, just as his opponents on the court honored his contributions to intellectual diversity in the law. He gave the school his time, his energy, and his passion. He made the University of Virginia School of Law a better institution. His contributions to our school, along with his formative legal and intellectual legacy, both deserve our recognition, and his portrait deserves a spot on the wall.  

 — Justin William Aimonetti ‘20 and TJ Whittle ‘20

SBA: Blood Drive Will Go Ahead with Antidiscrimination Messages Attached

On Monday, October 15th, the Blood Drive Special Committee voted on whether the SBA at UVA Law should continue hosting Blood Drives on Grounds. In a 9-1 vote, the Special Committee voted to recommend that SBA continues Blood Drives on Grounds. The Blood Drive Special Committee also recommended significant programming attached to our Fall and Spring Blood Drives. Future programming will educate the student body about the discriminatory nature of the FDA's men who have sex with men (MSM) blood donation prohibition, while providing students outlets to express concerns about the FDA's policy. The committee leadership presented recommendations to the general SBA body on Tuesday, October 16.  

Our list of recommendations include: no blood drives during Diversity Week; fundraising for LGBTQIA+ organizations working to overturn the MSM blood donation prohibition; distributing an ABA/FDA petition for those seeking to protest the Blood Ban; implementing improved and empathetic Blood Drive promotions that acknowledge the MSM blood donation prohibition; organizing programming with legal/medical scholars discussing the MSM blood donation prohibition; having a Lambda and/or LGBTQIA+ liaison on the Health and Wellness Committee to preserve institutional knowledge; submitting our recommendations on Blood Drives to UVA Law/UVA administration; improving SBA Committee record-keeping to preserve institutional knowledge; and other initiatives.  

We truly hope that the Special Committee's recommendations adequately address and challenge the discriminatory nature of the FDA's MSM blood donation prohibition while simultaneously addressing and being respective of the U.S. Blood shortage.  
With saying this, our recommendations are difficult and triggering for a significant and valued part of our UVA Law community. We recognize the magnitude of our recommendations. Whether you are a student for Blood Drives on Grounds or against, valid perspectives exist on multiple sides of this issue. Over the course of Committee deliberations, we found that many members of our student community were against the FDA's MSM blood donation prohibition. The central disagreement was how UVA Law and its SBA should address our tradition of having Blood Drives in lieu of the FDA's policy targeting members of our LGBTQIA+ community.  

As chairs of the Blood Drive Special Committee, we urge students not to dismiss or demonize the perspectives of those brave enough to voice disagreement with our recommendations. We value those perspectives. We instead encourage our community to educate themselves about why students may feel hurt, upset, triggered, and displeased with our decision. Students must build bridges of empathy instead of indifference or dismissiveness. We are, in fact, a community of future attorneys and policy makers. Many students who are against the FDA's MSM blood donation prohibition will have the political or governmental power to challenge this policy in the near future. But, an attitude of disdain and apathy toward our colleagues who are validly hurt by this policy only derails such efforts. 

We plan to work with the SBA Health and Wellness Committee and the SBA Diversity Committee to implement these recommendations not only for this year’s Blood Drives, but for any future Blood Drive at UVA Law. Please do not hesitate to reach out to us if you have any other recommendations or concerns. 


Toccara Nelson ‘19 and Tim Sensenig ‘20
(tmn2aa@virginia.edu) (tps4zf@virginia.edu)