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Bush v. Gore and Conservative Law Professors:

Andy Koppleman writes over at Balkinization:

One of the more depressing results of the decision was the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision. One can easily imagine what they would have said had the Court engaged in such contortions on behalf of Democrats. The dishonesty or self-deception of the Bush v. Gore majority is perhaps understandable: by reaching the result they did, they got something tangible that they badly wanted, a Republican president. But what, exactly, do scholars gain by mortifying their intellects in this way? They are worse than political hacks. They are public relations flacks for political hacks.

To which I respond, what on earth is Andy talking about? If conservative law professors were rushing to endorse Bush v. Gore, surely the Wall Street Journal's op-ed page would have found room to publish their views. A check of the Journal's archives showed that no such endorsement appeared. The Journal did, however, publish a critique of the opinion by then-Professor Michael McConnell, a piece that is said to have cost McConnell the solicitor general's job, and perhaps a supreme court appointment.

Meanwhile, I remember attending the Federalist Society's annual faculty conference just a few weeks after the decision. Not surprisingly, everyone was talking about Bush v. Gore, and to my recollection, no one endorsed the majority opinion on its merits, and quite a few attendees were openly hostile to the decision. Even Richard Epstein (a libertarian, not a conservative, fwiw), who defended the result in Bush v. Gore in 2001, described the majority opinion as a "confused nonstarter at best, which deserves much of the scorn that has been heaped upon it."

A few conservative legal scholars have defended the Supreme Court's resolution of Bush v. Gore from academic critics. But these are careful, scholarly works and were published well after the decision came out. No signs of rushes to judgment for political reasons here.

By contrast, even though the Court's basic equal protection argument received seven votes, I'm not sure that a single liberal law professor (a much larger group than conservative law professors) has argued that the Court was right, no matter how expansively such professors had previously argued the equal protection should be interpreted. Prominent liberal professors including Ronald Dworkin (NY Review of Books, Jan. 11, 2001), Bruce Ackerman (American Prospect, Feb. 12, 2001), Alan Dershowitz (Oxford University Press 2001), Michael Klarman (Calif. L. Rev. 2001), Jeffrey Rosen (New Republic, Dec. 25, 2000), and Laurence Tribe (Harvard L. Rev. 2001) wrote critiques of Bush v. Gore that appeared very quickly. And I also recall reading that one prominent (though unidentified) liberal law professor had an op-ed ready to be published the morning after the election arguing that the electoral college, not the popular vote, should determine the next president, only to pull the piece when it turned out that Bush, not Gore as expected, benefited from that line of reasoning.

Perhaps it's true that conservative law professors are more likely than liberal law professors to be "public relations flacks for political hacks." If so, the response to Bush v. Gore sure doesn't provide evidence.

UPDATE: And I as best I can recall, those few conservative law professors who did defend the Court's equal protection ruling argued that the decision was correct given existing precedent dating back to Warren Court decisions applauded by liberal scholars, not that the Court's opinion was correct on originalist grounds, or that it was a manifestation of judicial restraint.

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