McConnell Leaves the Bench

And adding insult to injury, he's not rejoining us at Chicago. He's stepping down to take up a post at Stanford University.

Chicago, I have to point out, is looking for a new Dean. A couple of students mentioned McConnell's name, but I didn't think he would go anywhere from the bench after having been so recently confirmed. Apparently he got wanderlust faster than any of us thought.

This also, incidentally, probably decreases to nil the chances that I won't try to clerk for some crazy raging leftist.

Remembering Which Side I'm On

Back when I was in high school, Church/State separation was one of my pet issues. And believe you me, I was a staunch separationist. I wrote my college admission essay on why I believed "under God" in the pledge was unconstitutional. In fact, I wrote my first real blog post about it. It was one of my favorite topics to speak on in debate, and I did so regularly.

My current position of skepticism towards standard separationist doctrine was thus quite some time in coming. And reading this opinion just released by the 10th Circuit, written by Judge Michael McConnell (whose scholarship was instrumental in my shift) reminds me of how far I've departed from my old stance. For even though I (think I) agree with his ruling (at least on an ideal level -- I'm not 100% convinced it comports with the relevant Supreme Court precedents), I still felt a bunch of twinges when I read it where I had to remind myself, "David, this is your position too."

Basically, the case dealt with a Colorado statute which prohibited the assignment of scholarships to students attending "pervasively sectarian" colleges or universities. The state originally enacted the rule to comply with Supreme Court precedents which heavily restricted the usage of state funds for sectarian ends. Twinge #1 came when Judge McConnell was recounting how many of those rulings were overturned. I think that to some degree those precedents were too harsh, but I still instinctively recoil against their loosening.

I had presumed such laws were permissible under Locke v. Davey, 540 U.S. 712 (2004). Judge McConnell spends a lot of time distinguishing that case, and while I'm not 100% sure that he's successful, I thought Locke was wrong in the first place (so again, speaking to my ideal state of the law here, not what this panel in this case should have done given the existence of that precedent). Particularly, I do not find the panel's argument that distinguishing "sectarian" and "pervasively sectarian" institutions constitutes impermissible discrimination between religions, though I'm more sympathetic to the argument that the deep inquiry the statute demands into the university's content to see if it's too "indoctrinating" may run afoul of the Establishment Clause.

Twinge #2 came when the college which was suing, Colorado Christian University, was described. It sounds like the type of hard evangelical institution that I want to suck as much power from as possible. But though my paradigm does, broadly speaking, provide greater protection to minority faiths than majority belief systems like Christianity, this appears to be a case where a Christian organization would earn protection under my general accommodationist tendencies. Moreover, another school that will likely benefit from this decision is Naropa University, one of the few Buddhist-affiliated institutes of higher education in the country. And indeed, at first glance the denial of scholarships to otherwise qualified Naropa University students seems to be a dead-on case of the way strict separationist laws can unjustly harm minority practitioners (particularly since Naropa does not appear to be "pervasively sectarian" anyway).

In any event, regardless of how ultimately this case should have been decided (under either the prevailing or my own Church/State doctrine), I found it interesting my gut response opposing the ruling even though intellectually I knew it was closer to my current jurisprudence. I'm glad I could recognize the contradiction when I saw it, but it just goes to show that I haven't managed to extract myself from separationism quite yet.

Winging It

Although I have more than a passing interest in it, I haven't blogged too much about the UC-Irvine/Chemerinsky affair. Virtually everyone -- left, right, and center -- seems to be in agreement that a) Chemerinsky was treated really badly and b) this was a bone-headed, if not crippling, start for the new law school.

However, while even most conservatives have been reasonably united in their condemnation of UC-Irvine, some have been grumbling that had this been a conservative candidate being drummed out by liberals, nobody would make a peep. Texas Law Professor Brian Leiter takes on this resurrection of the classic "conservative victimization" argument today, and I think he's spot on:

From an objective perspective, one might have thought it relevant that from the actual McCarthy era to the present, those who have been fired from academic jobs in the U.S. do appear to be all on the left end of the political spectrum (though I hasten to add that L'Affaire Chemerinsky is far more mild than what happened during the McCarthy era, or what has happened more recently to Professor Finkelstein at DePaul--it tells us more about the venal politics of Orange County, and the spinelessness of the Irvine Admininstration, than it does about anything else).

Does anyone really doubt that if, say, a "Chemerinsky of the right"--a high-profile, conservative constitutional law scholar at a top, if not super elite, law school (say, Steven Calabresi at Northwestern or Eugene Volokh at UCLA)--were treated the same way as Professor Chemerinsky (offered a job, signed a contract, then had the offer rescinded because of political pressure from outside the university), that the reaction would not have been exactly the same? There is simply something creepy about the spectacle of anti-intellectual low lifes with power or money being able to undermine university appointments at the 11th hour, and it is that, more than anything else, to which I think everyone in the academy is reacting. (Here is a profile of one of those reported to be involved in torpedoing the Chemerinsky appointment. Who would want to be involved with a university where people like this can actually intimidate administrators?)

I doubt every academic firing that's been political charged has come from the left side of the spectrum, but the point is well-taken. The update Brian writes actually mentions the case that immediately came to my mind: the strong defense by many prominent liberal professors of then-Professor Michael McConnell when his nomination by President Bush to the 10th Circuit was being held up. McConnell is undeniably conservative (he was on President Bush's Supreme Court short-list), but is widely respected by liberals and when some of our interest groups tried to trip up his nomination, the academic community reacted in force and en masse.

UPDATE: Leiter reports that Chemerinsky has been rehired as the UC-Irvine law school dean, and has accepted.