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Brian Leiter
University of Chicago Law School

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Sunday, September 16, 2007

L'Affaire Chemerinsky and Paranoia on the Right

There is a rather curious (though amusing) "round-up" of commentary on L'Affaire Chemerinsky courtesy of the LA Times.  It includes various right-wing bloggers congratulating themselves for being so much smarter and more knowledgeable about the law than Erwin Chemerinsky.  (Oddly, none of these individuals seem to be on anyone's list for any real job of significance in the real world.  Go figure?)  It also includes examples of a peculiar paranoia that seems to affect some of those on the right when it comes to academia; the LA Times, perhaps as part of its ritual self-flaggelation, quotes a particularly extreme example in the person of someone named "Bill Quick," who offers this penetrating insight into the matter:

[Another blogger says] "I would certainly hope that left-leaning academics would support someone on the right who was treated similarly."

Yeah, except you and I and most everybody else knows damned well they wouldn’t, and so calls for the right to do what the left would never, ever dream of doing - that is, support the intellectual freedom of a conservative - end up ringing hollow. After a few decades of turning the other cheek and showing how high-minded you are, and getting kicked in the teeth for it, you begin to wonder why you bother. And even though, theoretically, you know you should because by your own standards it’s the right thing to do, doing the right thing tends to lose its attractiveness.

It is hard to know what ancient wound has doomed the inaptly named Mr. Quick to now stew for all eternity in the paranoid juices of his own mind.  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?)

Of course everyone knows that politics figure in decisions about administrative appointments, since the position is often more political, than academic, in character.  If, in fact, Professor Chemerinsky was not going to be able to effectively interact with the Southern California legal community because of his public profile, that would have been a pertinent consideration.  But after nine months, no one had thought that was an issue:  he was offered the job, negotiated about its terms for a couple of weeks, and then signed a contract.  Within one week, naked political power was exercised to oust him.   Any university that is so vulnerable to partisan political muscle is a university in bad shape.

But what, it has been suggested, if Kenneth Starr, now Dean at Pepperdine, had been offered the Irvine job?  That would have been peculiar for a whole variety of reasons. Pepperdine, unlike UC Irvine, has an explicit institutional identity as a conservative, religious school; Starr seems like a good fit.  Obviously, no academically ambitious school would appoint Starr as Dean, since he is not a scholar, and has done no work of scholarly significance. The proposed Irvine Law School was to be part of an academically serious institution--the University of California campus at Irvine--and it was also, as I understand it, to have had a "public interest" focus.  The choice of Chemerinsky makes good sense in this context:  first, because he is an actual scholar with national standing, and second, becaues his ideological sympathies make him a quite credible leader for a school with a "public interest" orientation.

On the other hand, if after nine months of searching, UC Irvine had, for reasons unknown, chosen Kenneth Starr as the founding Dean, and had him sign a contract, then one would hope the decision would not be undone in similarly shabby fashion as has happened in the case of Professor Chemerinsky. 

UPDATE:  Attorney Steve Sanders writes:  "We needn’t speculate: when Michael McConnell was nominated for the circuit bench and came under attack from the left, a group of law professors from across the spectrum – including many liberals in good standing – signed a NYT ad defending the nomination and pointing out that he’s an excellent thinker and scholar."     

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