In the complicated emotional manipulation that was yesterday's lawprof hearing, one almost random thing stuck way out.

I can only guess what goes on in other people's head. It was hard enough for me as a law professor to understand how much law students were getting out of a discussion, and those were carefully selected participants who were supposed to have read a text that was exactly what we were talking about. But what did Americans get out of yesterday's hearing before the House Judiciary Committee, where professors jabbered all day, prodded by posturing politicos professors?

What would James Madison think of us right now, can you tell me, professor? How about Hamilton?, what does he think, because we care about what that guy thinks now because of the Broadway musical about him. Well, this is the most impeachable thing that ever came down the impeachment trail. If this isn't impeachable, then nothing is impeachable, and any President will be able to do anything and it won't be impeachable! On the contrary! If this is impeachable, then every President will always have to be impeached!

Ugh! Such a crazy clutter! I turned away, and I'm used to absorbing legal-ish stuff like that. It's no challenge to understand. For me, it's like reading a young adult novel. It's just a matter of whether I'd want to consume something on that level. But I'm a former law professor. I taught all the separation of powers materials they were talking about. And I'm old and have lived thought not just the Clinton impeachment hearings but the Nixon impeachment hearings.

So who am I to guess at what was going on inside 100 or so million heads? What, if anything, got from that hearing into the mind of the voter? Maybe mostly just a vague sense of reinforcement in whatever level of hostility or support they already felt for Donald Trump. But I think there was one thing that rose about the chaotic verbiage: The Child!

My Google search just now (click to enlarge and clarify):

I thought the law professors would give a very somber, neutral-seeming presentation of what they would characterize as law.

I am surprised that they spoke so severely and stridently and launched right into stating conclusions, applying the law to the facts, and expressing these conclusions in a tone I'm used to seeing in the movies, where hammy actors argue to a jury.

I thought — as I said 2 posts down — the idea would be for the 3 law professors called by the Democrats to provide cover for the Democrats by performing the theater of making everything sound like law and not politics and by speaking in a tone that would feel academic and sadly, grimly inevitable.

But they came on so strong, righteously angry and in an exaggerated tone, making assertions that the things Trump did are impeachable. They did not work to establish our confidence that they were operating in a scholarly zone that was truly their expertise. They did not give us reason to believe we should listen to them as expert witnesses.

What an awful display! And I'm not even counting the motions for who knows what and the roll call votes (which seemed to be the GOP strategy for making the show as annoying as possible). The first 2 witnesses — Noah Feldman and Pam Karlan — scolded and yelled. Michael Gerhardt was a bit milder, but he mumbled and stumbled, and I couldn't believe he brought up the musical "Hamilton."

It was not at all the "constitutional law seminar" that White House Counsel Pat Cipollone decried. It was an unwatchable harangue.

The GOP witness Jonathan Turley stepped back and made an important argument: You need to be careful that whatever you do is going to set a precedent that will be used against future Presidents. Also (and this was quite apt after listening to Feldman and, particularly, Karlan): Everyone is too angry and this isn't the sort of thing we should be doing in a state of high hysteria. Turley bolstered his testimony by assuring us that he didn't like Trump and didn't vote for him. That, ironically, made him the least political of the set of 4 professors, but it isn't quite fair that there's no one on the panel to balance Feldman and Karlan and simply make a scenery-chewing pro-Trump argument.

"I served for 8 years on a university sexual misconduct board and at the end of that distressing tour of duty concluded the following..."

"(1) the combination of alcohol abuse by both parties (which is the case in the vast majority of charges), absence of witnesses, and absence of any forensic investigation in the student led process makes the charges almost impossible to prove by any standard of evidence; (2) a very small number of sexual predators can create a lot of misery on a campus (3) peer pressure and buddy systems by both male and female students are probably the best form of prevention; and (4) cases of sexual assault should go straight to the police and courts. Universities aren't equipped to handle these cases and need to stop trying to serve as a parallel justice system. This is not a place for amateur hour."

That's the second-highest-ranked comment on the NYT article: "A Majority Agreed She Was Raped by a Stanford Football Player. That Wasn’t Enough."

"A Majority Agreed" means that 3 members of a panel of 5 found that the male student committed a sexual assault. It "Wasn't Enough" because Stanford required at least 4 out of 5 on the panel to find a preponderance of the evidence against the accused. Preponderance is the lowest standard of evidence, and the panel can include students (as well as faculty and administrators), but the NYT still called this "an uncommonly high bar."

Stanford has changed the procedure to a panel of 3, and now the panel must be unanimous:

“In deciding we wanted well-trained, long-term panelists, it made sense to go to a three-person panel,” said Pamela S. Karlan, a Stanford Law professor who is now chairwoman of a sexual assault advisory committee, “and having three people decide something by a preponderance of the evidence seemed to us the appropriate way of deciding whether a life-altering sanction should be imposed on somebody for his or her behavior.”...

Michele Dauber, a Stanford law professor... said she doubted that the university’s proceedings complied with Title IX.... “You have to look at the process holistically, and when you see a series of hurdles and roadblocks, this becomes a very unfriendly place, if not one of the most unfriendly in the nation,” said Ms. Dauber, one of five Stanford professors (including Mr. Palumbo-Liu) who wrote an open letter in December 2015 to the provost complaining about the new policy. “The victim should not need to garner three votes to win while the respondent needs to garner only one. That is basic inequality.”

Those last 2 sentences of Dauber's are — as her use the word "garner" suggests — disingenuous. The accused and the accuser are not in the same position, and the panel isn't voting to pick one of 2 individuals who are vying for the same thing. It's not a question of equality. It's a question fairness — giving enough process to the one who faces a very serious deprivation. 

ADDED: I don't like Dauber's reference to the "victim" and the "respondent." The absence of parallelism shows the strain. Before the outcome is determined, it is emotive and biased to call one person the "victim." Dauber is decorous enough to avoid saying the word that goes with "victim":  "perpetrator." She says "respondent." The word that goes with "respondent" is "complainant."

"Imagine what it takes to live your whole professional and personal life as a 'justice-in waiting.'"

Josh Blackman and Randy Barnett say in a Weekly Standard article titled "The Next Justices/A guide for GOP candidates on how to fill Court vacancies."

Stanford law professor Pamela Karlan was viewed by many on the left as a dream candidate for the Supreme Court. However, in light of her well-documented record of supporting various hot-button liberal causes, she was never even nominated for the Ninth Circuit Court of Appeals. Karlan was the antithesis of the “Little Supreme.” But did she regret it? Not at all: “Would I like to be on the Supreme Court?” she asked rhetorically. “You bet I would. But not enough to have trimmed my sails for half a lifetime.” We are not suggesting that Karlan should be a Supreme Court nominee, but she exposed the truth about SCOTUS-wannabes who “trim their sails” and limit their potential based on a fear of a future confirmation hearing: Such persons lack the character a justice needs.

Karlan explained this with her characteristic forcefulness: “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” Imagine what it takes to live your whole professional and personal life as a “justice-in waiting.” These SCOTUS-wannabes spend their careers seeking the approval of others, in the hopes that one day they will be nominated because of their friendships across the political spectrum....

"For justices in the center, I don't think they want to be on the wrong side of history" on same-sex marriage.

Says Stanford lawprof Pamela Karlan.

"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.

Chapman University lawprof John Eastman says:

"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:

The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.

The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"? 

Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy.  Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?

I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

More Rush:

Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world. 

And the right? They do the same damned thing.

Americans don't give a damn whether the next Supreme Court appointment goes to a woman/black/Hispanic.

A Gallup poll.

ADDED: Rick Hansen predicts that Obama will pick 7th Circuit judge Diane Wood. Read his 5-point analysis at the link. Read the whole thing, but here's #5:

The president is likely to resist the temptation to go bold. Going bold is choosing someone like Pam Karlan, who is brilliant and outspoken. Pam hasn't trimmed her sails in what she's said, and there would be plenty of those YouTube moments to be dissected by 24-hour cable news and a Senate Judiciary minority led by Senator Sessions. As with Sotomayor, Karlan likely could be confirmed to the Court with a big push by the President. This would be the nomination progressives would love. But my thinking is the president wants to preserve some of his capital for everything else, and with Wood he gets an excellent choice at very little cost.

Hansen links to this YouTube clip of Karlan, which I think deserves any effort it might take to vigorously defend: