Tuesday, May 31, 2005

Hurting the Cause

Regular readers of this blog know that I've written a fair amount on the liberal slant of academia, both on its roots and on what might solve the problem. So I was quite interested to see what Law Professor Scott Gerber had to say in an article entitled: "The Radicalization of American Legal Education: Why the Left's Dominance Is Bad for Law Schools and the Law" (link: How Appealing)

It was absolutely awful. Speaking as someone sympathetic to the position, I can honestly say this was perhaps the most compelling argument for keeping conservatives (or at least Professor Gerber) out of academia entirely. In addition to the constant Limbaugh/O'Reilly-esque statements of "that's right" and "you read that right" ("I am not making this up! I could not make this up!), the entire piece is a collage of shoddy argumentation and barely veiled partisanship in the well-known "if it's bad, it must be liberal" vein of discourse.

Gerber starts with the now well-known statistics on the predominance of liberal voices on academic campuses. Alright, fair enough. Then he gives us this gem:
And if those numbers aren't proof enough of the current state of legal academe, here's a fact that's largely unknown outside of the corridors of America's law schools: the Association of American Law Schools--the legal academy's learned society--was recently led by a self-proclaimed "radical" Marxist. (A nice guy, but a Marxist nonetheless.)

I'm not a Marxist, of course. But what does being one have to do with leading a society? It's not like the AALS is the Supreme Court--it doesn't have a bearing on what professors teach, how they teach it, or really anything all that political at all. As far as I can tell, the AALS is mostly an umbrella organization within which Law Schools can network and communicate. Being a Marxist has absolutely nothing to do with ones capabilities in leading that sort of thing (it should also be noted that the types of Marxists one finds in legal academia are of a very different breed than the ones you'd find in Stalinist Russia).

Then Gerber makes my favorite conservative argument of them all, when it comes to academia. Can you guess what it is? I'll give you a hint: It's a two parter, part one dealing with race and gender, part two dealing with political affiliation.

If you guessed "affirmative action and discrimination," you win a prize! In the same section, Gerber simultaneously argues that a) seeking to hire under-represented racial and sexual minorities for law school positions is unjust and wrong and b) seeking to hire under-represented political minorities for law school positions is necessary and morally required. Honey, you got to pick a position and stick to it: Either law schools have the obligation to hire more underrepresented voices, or they don't. But trying to manipulate the rules so it only benefits your own group--that's just not on.

Gerber next moves into his examples of how legal education has been "radicalized." The first one (and who couldn't see this one coming) was the Clinton impeachment:
The first was when a flood of law professors reported to Congress during the Clinton impeachment imbroglio that lying under oath (as President Clinton had done in the Paula Jones litigation) and obstructing the judicial process were not impeachable offenses. Certainly, the Framers would have characterized that sort of behavior as an "offense against the state": their definition of a "high crime or misdemeanor." Succinctly put, lying in federal court is, and ought to be, an impeachable offense.

An "offense against the state"? Any criminal act is, by definition, an "offense against the state" (including jaywalking, which, if Monica had never surfaced, we'd probably have seen an impeachment proceeding begun on that basis instead). The whole structure of our criminal law system is premised off removing crimes from the realm of torts between persons and making them crimes against the state. That's why they're all labeled "State v. Smith" or "People v. Smith" or something along that vein. Making that your definition of "High Crimes and Misdeamenors" would make "high" superfluous. Succinctly refuted, lying under oath in a civil suit about an action in which congress had no authority to inquire into is not, and ought not be, an impeachable offense.

But here is where Gerber tops himself. Contradictory, hypocritical, and hyperbolic as he may have been, at least so far the good Professor had managed to confine himself to ills that could reasonably be tagged on liberals alone. All that ends in example number two:
The second example of how the radicalization of American legal education has impacted legal scholarship is the recent stream of books by influential law professors calling for a reduced role for the judiciary in constitutional interpretation. You read that right: These professors think courts should get out of the business of interpreting the Constitution. One professor even calls for a constitutional amendment overruling Marbury v. Madison, the landmark 1803 decision by Chief Justice John Marshall that is widely credited with establishing the Court's power of judicial review. You read that right, too: This particular professor thinks the hallowed case that has long been regarded as the source of the strength of the third branch of American government was a bad idea--one that, two hundred years later, should be revisited.

Gerber is correct that there is a movement amongst liberal legal scholars that is beginning to question whether or not liberal policies should be pursued in the court's. However, to argue that it is predominantly liberals who have been critical of judicial review and aggressive constitutional interpretation is simply delusional. Across history (and still today), it has always been conservatives who have been most vociferous in their attacks on Marbury. Indeed, did we not just emerge for a 24/7 news cycle where we heard daily from the right about how evil those "activist" judges are and how they should defer more to the popular branches of government (sample quote, via Rep. DeLay "The reason we had judicial review is because Congress didn't stop [the judiciary].")? How quickly we forget.

Gerber's article is simply a spiteful, vitriolic attack against the left--damn the truth, full to starboard. It's disgraceful, and does more to damage his cause than a million Marxist chiefs of the AALS could ever do.

UPDATE: Daniel Solove wonders if
As the judiciary grows more conservative...whether liberal and conservative scholars will retool their positions on judicial review or the role of the courts. Inspired by the Warren Court, liberals sought to justify robust judicial review. Conservatives pushed for judicial restraint and attacked the legitimacy of judicial review. (These are broad generalizations of course.) But the courts have a very different complexion today, and I wonder whether liberal and conservative positions on judicial review will start to shift soon.

This realignment may indeed, start happening. Conservatives have not been too vocal in decrying activist conservative decisions, and as Professor Gerber notes, there are some liberal groups who want a more restrained judiciary. But it is important to recognize where the liberal groups are coming from. It isn't from some abstract position of judicial restraint (which would imply that they are merely flipping positions with the right as it becomes politically expedient to do so). Rather, the change is motivated by a wholesale critique of how judicial victories translate into "real world" changes. Richard Delgado and Jean Stefancic note that:
[L]ower courts have found it easy to narrow or distinguish the broad ring landmark decisions like Brown v. Board of Education. The group whom they supposedly benefit always greets cases like Brown with great celebration. But after the celebration dies down, the great victory is quietly cut back by narrow interpretations, administrative obstruction, or delay. In the end, the minority group is left little better than it was before, if not worse. Its friends, the liberals, believing the problem has been solved, go on to something else, such as saving the whales, while its adversaries, the conservatives, furious that the Supreme Court has given way once again to undeserving minorities, step up their resistance. [Critical Race Theory: An Introduction. (New York: New York University Press, 2001), 24]

Liberals have discovered that by going through the court system, they win the big battles but lose the overall war. This is because the victories in the court system make it hard for interest groups to mobilize grassroots supporters to protect against rollback attempts--who needs to fight for choice when you've got Roe--while at the same time providing infinite manpower for infuriated conservatives livid that there interests have been excluded from the political playing field. The "liberal restraint" movement, for lack of a better name, grows out of these pragamatic concerns, not out of a generic distrust of the judiciary as such. Is there a bit of "oh, wow, with conservatives dominating the judiciary now maybe we shouldn't support infinite judicial power!"? Probably. But that is not the overall motivating factor here.

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