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Kmiec on Chemerinsky:

Pepperdine law professor Douglas Kmiec comments on UC Irvine's disgraceful treatment of Erwin Chemerinsky in the LA Times. Here's a taste:

Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.

So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin's political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom. . . .

Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.

I will continue to believe that the law has its own place above politics, but Erwin's dismissal surely makes that belief harder to sustain. UC Irvine's inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer.

ejo:
will the world end because another law school is not controlled by a far left extremist? why don't they try to appoint John Yoo to the position so we can get the sane reaction that decision would provoke? to anyone not cloistered in academia with one eye constantly on the tenure ball, this is a refreshing and long overdue change.
9.13.2007 12:08pm
AntonK (mail):

UC Irvine's inability to keep politics out of its decision-making...

Kmiec has to be kidding.

Odd. Some have described Chemerinsky as being "Remarkably distinguished" and "accomplished." It seems to me that "remarkably distinguished" and "accomplished" scholars don't publish vile polemics like this.

Not to mention this, from this fine constitutional scholar:

Sorry, but Chemerinsky seems to me to be more clown than legal scholar.
9.13.2007 12:08pm
Whatever:
Ejo - what change are you talking about? Choosing a dean based on his political leanings? What about tenure decisions or students grades? I think those on the left, right and center can agree political issues should play a lesser role in such decisions.

AntonK - I would wager that Kmiec is not joking. An odd place to publish a joke. Perhaps there is a larger principle that Kmiec and other scholars are defending in denouncing the firing. Your disdain for Chmerinsky's editorials or commentary do not change my opinion that it is a principle worth defending. Given the frequent issues this blog's authors and readers have with legal academia marginalizing or punishing those with libertarian or right-of-center views, I would hope the broader principle would be served by denouncing those that marginalize or punish those with left-of-center views. If the Dean candidate would respect and build a diverse (politically speaking) faculty and nurture their development that would serve all interst. I think Kmiec beleives (along with other conservative professors) that Chemerinsky could have been just such a Dean at Irvine.

If this kind of ideology driven support infects the deanship, it will be intersting to see the faculty tenure battles, legal clinic work and student organization issues that come out of Irvine's law school when it gets on its feet. Doesn't look like Laurence Tribe will be getting a Chaired position or honorary degree at Irvine anytime soon.
9.13.2007 12:33pm
NRWO:
Is UC Irvine's disgraceful treatment of Chemerinsky wrong -- or at least questionable -- as a matter of California law?

From Leiter:

Kevin Gerson, Associate Director of the UCLA Law Library, points out to [Leiter] that Art. 9, § 9 of the California Constitution, regarding the powers and duties of the Regents of the University of California, provides that, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."
9.13.2007 12:35pm
Pin Head (mail):
Donald Bren issued a statement denying that he had an influence on Drake's decision. His spokesperson stated: "Mr. Bren said he doesn't know enough about Erwin Chemerinsky to have an opinion and he never expressed one to anyone -- pro or con."
This fits with Mr. Brens history of not being involved in any academic policy at the University. Mr. Bren is not the only significant local donor to the law school and the law school has broad support of local politicians who tend to be conservative. This local political support probably had something to do with the Regents approving the law school despite the committee rejection of the application by UCI. Any of these local supporters could have contributed to Chancellor Drake changing his mind.
9.13.2007 12:37pm
ejo:
chemerinsky is a far left activist-just what any law school needs since they are few and far between in the academy. if he is being treated in the same way that he encouraged others to treat judicial nominees, my feeling is tough luck. my three second google on the guy turned up one of his editorials with a title along the lines of "if he's as out there as he seems, bork'em". why should one feel the need to be sensitive to someone like that, just because he's polite. EC's a nice guy but too far left, bork'em.
9.13.2007 12:37pm
R Gould-Saltman (mail):
ejo:

You imply that some majority of law schools are controlled by "far left extremists" and I'm guessing you'd include Boalt on that list. Nevertheless, Yoo's got a job teaching there, which suggests that at least some UC law schools are not ideology-driven . I think you'd be hard-pressed to pitch USC Law School as a greenhouse for budding Maoists with bar-cards, and yet they found Erwin of sufficient value to hire him. (Disclosure: I'm an SC Law alum, but not one of Erwin's students).

The gripe here is not simply that UC Irvine made an ideological hiring choice; it's that they MADE ERWIN AN OFFER AND THEN RESCINDED IT. Erwin didn't go on vacation in August a Federalist Society leader and re-appear this week as a leftist; whatever his views have been, they've been public and consistent for decades. The clear implication is that a public college was suifficientlty beholden to the views of a single private donor that he was in a position to say "If you hire THAT guy, I'm takin' back my money!" and make it stick. That's bad...

gould-saltman
9.13.2007 12:39pm
Thorley Winston (mail) (www):
I have to disagree with Professor Adler on this one. From what I can tell there aren’t any examples where Erwin Chemerinsky has publicly defended conservative scholars who were denied tenure or jobs because of their political ideology and in fact Chemerinsky has been one of the leading national proponents of using political ideology as a test for denying other people jobs in the legal field because of their perceived political ideology. A test which Professor Adler himself noted – when he posted under a pseudonym in part for concern of his own tenure application – was entirely one-sided and directly contradicted Chemerinsky’s earlier position when the shoe was on the other foot.

I’d agree that if Chemerinsky were the sort of professor who publicly advocated not using political ideology as a criteria for hiring decisions that conservative scholars should defend him if they believe he was treated unfairly because of his politics. From what I can tell though, he’s not that sort of person and has no bones about denying other people legal jobs because of their political beliefs. In which case – assuming the charges are true, at worst it seems to me he’s getting a taste of his own medicine.
9.13.2007 12:43pm
golden stater (mail):
The early, knee-jerk potshots at Bren tell us more about the people who made them than about Bren. If the story continues to exonerate Bren and implicate folks with the UC system, don't hold your breath for any of fingerpointers to say, "I'm really sorry I jumped the gun and repeated baseless gossip and innuendo about Bren." The irony is that the motivation for that bad behavior is the same motivation that was being falsely attributed to Bren: a man with that political orientation is a bad man.
9.13.2007 12:43pm
Thorley Winston (mail) (www):
Donald Bren issued a statement denying that he had an influence on Drake's decision. His spokesperson stated: "Mr. Bren said he doesn't know enough about Erwin Chemerinsky to have an opinion and he never expressed one to anyone -- pro or con."

This fits with Mr. Brens history of not being involved in any academic policy at the University. Mr. Bren is not the only significant local donor to the law school and the law school has broad support of local politicians who tend to be conservative.


That makes sense unless someone can show where Mr. Bren has previously used his donations (he’s given nearly $900 million to education and conservation causes) to influence hiring decisions. The other thing to consider is that Chemerinsky has a past history of turning down jobs and badmouthing the people who offered him one. Who’s to say he’s not being disingenuous in his claims that he was targeted because of his political beliefs – something he’s apparently had no problem advocating being done to people on the other side of aisle.
9.13.2007 12:50pm
pritesh (mail):
I will continue to believe that the law has its own place above politics

I give you Bush v. Gore.
9.13.2007 12:55pm
ejo:
don't be impolite and point out EC's past positions and bare knuckled politics-it is simply not done in the academy. we are to ignore those things.
9.13.2007 12:56pm
Al Maviva (mail) (www):
If you use political tests like this to determine who gets hired, it is exactly the kind ideological deck stacking about which principled legal conservatives have complained about for a long time.

If the Regents want a more conservative, or more ideologically open law school campus, they should make clear to Prof. Chemerinsky that his faculty committee hires should reflect ideological diversity - a law school's job is to teach the range of methods available for interpreting the law, point out flaws and benefits in each, and let the students figure out which they prefer. You don't feed them one side of the argument. In addition to having a political indocrinating effect, it also turns out lawyers incapable of understanding (and beating) the other side's arguments.

You don't develop an atmosphere of open academic inquiry by copying the tactics of those who shut down openness to begin with - you merely create a mirror image of their flawed system.

FWIW, I despise what I know about Prof. Chemerinsky's politics but respect him as one of the legal left's more intelligent and civil interlocutors.
9.13.2007 12:59pm
frankcross (mail):
In the conservative assault on Chemerinsky, I think it's interesting that they are willing to take down many leading legal conservatives (Kmiec, Reynolds, Bainbridge, Volokhians), essentially calling them dishonest and unprincipled, in order to get their liberal.
9.13.2007 1:01pm
ejo:
conservative assault-is that where you unfairly point out the guy's past statements and policy positions. that truly is unfair, although I don't see any attacks against any of the people named.
9.13.2007 1:09pm
FC:
I have a hard time believing that the University of California system, which i.a. rejected Allan Bakke, tenured Angela Davis, and fought Prop. 209, is in any way non-political.

As it takes state money and is ultimately under state control, it is necessarily political.
9.13.2007 1:10pm
Thorley Winston (mail) (www):
In the conservative assault on Chemerinsky, I think it's interesting that they are willing to take down many leading legal conservatives (Kmiec, Reynolds, Bainbridge, Volokhians), essentially calling them dishonest and unprincipled, in order to get their liberal.


Bit early in the day for posting while drunk doncha think?

FWIW no one has suggested that the aforementioned leading legal conservatives are being either “dishonest” or “unprincipled.” A little too quick to jump the gun before the facts are in, perhaps. Treating Chemerinsky far better than he’s treated others definitely.
9.13.2007 1:11pm
PatHMV (mail) (www):
One, I fail to see how the decision of one single Chancellor, however bone-headed it may have been, carries such drastic repercussions for the academy as some of its members seem to be screaming about.

Any Chancellor who intends to extend a job offer for a high-level position like this one should do his homework with the Board before actually extending the offer. Had this decision been made before the offer was extended, nobody would have ever heard about it, and it wouldn't be noteworthy in the slightest. Happens all the time, "I don't think so-and-so is the right fit at this time." The only difference here is that the offer was made and the Chancellor gave some truly boneheaded explanation for why.

In the process, the Chancellor blamed others for the decision, even though he was the one who both made and withdrew the offer. Critics immediately began to slander Mr. Bren, who we now see is proclaiming his innocence. And the Chancellor, who started this all, never actually named Mr. Bren to begin with.

I think the Chancellor ought to be fired post haste for mucking this all up. If he was told to rescind the offer, he ought to tell us who told him to do it. If he doesn't tell us, I'm going to assume he's making up the reasoning for it as well. When he first made the statement, he may have thought that explanation would sound better than some other explanation like "a couple of the Board members were pissed at me because I didn't run the selection by them first."
9.13.2007 1:13pm
PatHMV (mail) (www):
Much more attention needs to be focused on the Chancellor and much less on some mythical "conservative opposition" to Chemerinsky. According to the WSJ, they interviewed the Chancellor yesterday, and he said he had gotten no calls from any of the Board of Regents asking that the job offer be rescinded. It sounds to me like the Chancellor was buckling under pressure that existed in his own mind, and I'm getting sick and tired of hearing a bunch of ordinarily smart, measured people leap to attack "conservatives" without first demanding a bit more information from the official who actually made these boneheaded decisions.
9.13.2007 1:22pm
CJColucci:
Why would any academic who isn't just plain burned out as a scholar want to be a dean anyway?
9.13.2007 1:46pm
Horatio (mail):
Questions for the lawyers/law profs:

Regarding the notion of scholarship and Chemerinsky being considered a "Constitutional scholar":

Does methodology trump conclusions or viewpoint? This is the viewpoint of an uncle who has a Ph.D. in Social Work.

If Chemerinsky's conclusions in his "scholarly" works the are polar opposite of yours, why do you consider him a scholar?

Would you say the same thing about someone who does research in the "real" sciences or mathematics?

Is this notion of scholarship (methodology trumping conclusions) merely social lubricant in a small circle of individuals, or am I missing something?

I am trying to understand this.
9.13.2007 1:46pm
glangston (mail):
Is Prof. Volokh interested in this position?
9.13.2007 2:25pm
frankcross (mail):
Yes, Thorley, that was exactly the implication of your posts. You want to pretend it wasn't but it was. For example, you said Chem was being disingenuous for making the very same claim that the conservatives also made. The conservatives, not Chem, were among those who brought Bren into the discussion, I believe. Though Antonk's attack on Kmiec was more direct.

I think the decision of UCI was fine but that they horribly bungled it. I don't understand why a Dean can't editorialize on capital punishment, but if UCI wants one who doesn't do so, they should have made that sort of thing a clear condition on the offer.
9.13.2007 2:43pm
Dilan Esper (mail) (www):
will the world end because another law school is not controlled by a far left extremist

I've posted on this before, but will conservatives please stop confusing "liberal" and "leftist"? Yes, I know you disagree with them, but Erwin is not Noam Chomsky or Duncan Kennedy. He is a liberal, not a leftist.
9.13.2007 3:12pm
Dilan Esper (mail) (www):
From what I can tell there aren’t any examples where Erwin Chemerinsky has publicly defended conservative scholars who were denied tenure or jobs because of their political ideology

As far as I am aware, Erwin supported the elevation of John Eastman to dean at Chapman. John Eastman is as conservative as they come.
9.13.2007 3:14pm
Dilan Esper (mail) (www):
Horatio:

Questions for the lawyers/law profs:

Regarding the notion of scholarship and Chemerinsky being considered a "Constitutional scholar":


Yes, Erwin is a scholar. I published a law review article ("Some Thoughts on the Problem of State Action" in 1995) which excoriated Erwin's analysis in a previous law review article on the same subject. Nonetheless, Erwin's argument-- though I believe it was wrong-- was based on copious citations to authority and research, careful analysis, and reasoned argument.

I do realize that Erwin publishes a lot of opinion pieces in the newspaper. I accept Kent Scheidigger's point in the previous thread that he may get some things wrong (I have noticed that from time to time myself). But newspaper opinion pieces, written in a short period of time, are not scholarship. Just because someone gets something wrong in the newspaper doesn't mean that the person isn't a scholar.

If you doubt Erwin's scholarship, go look at a copy of his Constitutional Law treatise in a local law library. You will be impressed.
9.13.2007 3:18pm
RL:
Does this mean the terrorists have won?
9.13.2007 4:50pm
Berkeley Conspiracy:
I find Berkeley Law School Dean Edley’s apparent support of Drake’s decision shocking. Here’s the quote from the American Lawyer: “Edley [who] was handpicked by Chemerinsky to serve on his advisory board — said … though he declined to identify the individuals who opposed Chemerinsky … ‘At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that’s an exceptionally delicate proposition.’”
Wait a minute, did Edley just betray the man who handpicked him to serve on his advisory board? What was Edley doing playing both sides, advising Chemerinksi and those who opposed him? And having liberal views can’t earn the trust of a diverse constituency? Et tu, Edley? Did Edley just cleverly deal a death blow to a “startup venture” competitor that threatened to compete for students and faculty?
9.13.2007 6:25pm
Libertarian1 (mail):
I don't recall a similar howl of anguish when Lawrence Summers was relieved of his position. If politics can be 100% responsible for a college President's dismisal it certainly can be involved in the initial hiring process of a mere dean.
9.13.2007 6:45pm
Richard Gould-Saltman (mail):
Libertarian1: If you "recall" no "howling" about the Summers matter, then either your recall, or your use of search functions, like the one at the top of this page, is something less than optimal.

r gould-saltman
9.13.2007 7:17pm
Libertarian1 (mail):
Richard

The howls came from disappointed conservatives not from liberals who expended huge amounts of energy finding good cogent reasons why he should be fired for daring to have poliical views that angered and nauseated a few members of his faculty.
9.13.2007 8:01pm
The General:
how many liberals rushed to Summers' defense? Really, and he was a liberal, just not an uber-liberal. Chemerinsky is fairly mild mannered, if I can tell from his lectures, but that doesn't mean he hasn't gone off the deep end in his views of the constitution and his willingness to distort the opinions and views of conservative judicial nominees specifically. Anyone like that can't possibly create an atmosphere at a law school where all students, not just the lefties, feel free to learn in peace without the PC nazis forcing their views down everyone else's throat.

That said, he shouldn't have trouble finding another gig in academia.
9.14.2007 1:05am
Horatio (mail):
Yes, Erwin is a scholar. I published a law review article ("Some Thoughts on the Problem of State Action" in 1995) which excoriated Erwin's analysis in a previous law review article on the same subject. Nonetheless, Erwin's argument-- though I believe it was wrong-- was based on copious citations to authority and research, careful analysis, and reasoned argument.

I do realize that Erwin publishes a lot of opinion pieces in the newspaper. I accept Kent Scheidigger's point in the previous thread that he may get some things wrong (I have noticed that from time to time myself). But newspaper opinion pieces, written in a short period of time, are not scholarship. Just because someone gets something wrong in the newspaper doesn't mean that the person isn't a scholar.

If you doubt Erwin's scholarship, go look at a copy of his Constitutional Law treatise in a local law library. You will be impressed.


Dilan--Thanks for the reply. I guess the trouble I have is summed up as follows:

The non-sciences such as law are not subject to the rules of Aristotelian logic in the same way math and the hard sciences (physics, chem, etc...) are. In law, 2+2=5 is possible through tortuous reasoning. From the responses I've received here and elsewhere in the blogosphere, the appellation "scholar" is routinely given to those who arrive at "5" as the answer to any given problem. In short, methodology trumps conclusions.

This is in no way to suggest that one can't do meticulous research, analyze a problem, and come to a conclusion that "makes sense". But does this make one a "scholar"?

Oh well - we live in a crazy universe in which "4=5", and the proponents of each answer can believe that the other fellow is "brilliant but wrong". Kurt Gödel was right.

Thanks again for the response.
9.14.2007 10:03am
Thorley Winston (mail) (www):
Does this mean the terrorists have won?


Chemerinsky didn’t get the job, so that would be a “no.”

(J/K)
9.14.2007 11:44am
Ralph Phelan (mail):
Chemerinsky, the great civil rights advocate, completely ignored a major civil rights abuse happening right under his nose. (see http://durhamwonderland.blogspot.com/)

He deserved to lose this job opportunity - cowardly hypocrites can be effective professors, but they make lousy administrators.
9.17.2007 12:06pm