Today, Carolina Journal Radio’s Donna Martinez talks with George Leef, vice-president for research with the Pope Center for Higher Education Policy, about the controversy surrounding the hiring of Duke University Law School Professor Erwin Chemerinsky, an outspoken liberal, as the dean of the new law school at UC-Irvine in California.
Martinez: This is such an interesting story, George. Briefly explain what happened with [Duke University Law Professor] Erwin Chemerinsky.
Leef: Sure. Well, I want to back up to the very beginning of this, which is the creation of this new law school at UC-Irvine. California already has 38 law schools.
Martinez: Oh my gosh.
Leef: And there was a proposal made a few years ago for a brand new one at UC-Irvine. Well, there was a study committee appointed by the legislature to decide whether there is really any need for another law school in California. The committee said no. Well, they did it anyway.
Martinez: As they often do.
Leef: Yes, well, I think they were responding to other influences when the university said, “Well, despite the recommendation of the committee, we are going to go ahead with the new law school.” People out in California are saying, “Look, there are other things we need a lot more, like maybe nursing schools, but not a new law school.” It’s going to have a very strong public policy bent to it, I understand. So they started looking for a dean once they decided to start the new school, and they settled upon Professor Chemerinsky, who is a constitutional law scholar currently teaching at Duke.
Martinez: And in fact many people hear him, read his op-ed columns. He is in the public debate a lot.
Leef: Yes, he is very, very outspoken. There are very few things about which we — Professor Chemerinsky and I — would agree, on the interpretation of the Constitution. Nevertheless, he is a perfectly honest and respectable scholar who deeply believes in the causes he supports. And he was chosen as the first dean of this new law school at UC-Irvine. Well, he was chosen, it was announced by the president of the university. And shortly thereafter, it was announced that he had been un-hired. And the reason given was that a number of conservatives in Southern California supposedly had said, “Well, we don’t want this guy. Now that we have seen what his record is like, he is much too liberal for us.”
Martinez: In fact, Erwin Chemerinsky is the first person to tell you that he is a very proud progressive in this country.
Leef: Yes, yes, that is absolutely right. And to me it was a little bit baffling that in the very blue, liberal state of California, conservatives would have so much influence that they could “Bork” Erwin Chemerinsky prospectively just by saying, well, we don’t like him, and therefore, he would be un-hired. Well, this created a real firestorm of bad publicity for the University of California, and Irvine in particular. And so the chancellor changed his mind again and re-hired the un-hired Professor Chemerinsky, who will now get that position after all as the dean at UC-Irvine.
Martinez: Well, George, I think the bottom line question here is this: Does it really affect a person’s suitability to lead a law school based on their personal beliefs? Does it matter that Erwin Chemerinsky is a progressive, a liberal? Would it matter if he were a staunch conservative?
Leef: No. I think the United States is far, far deep in the grip of a really destructive idea that politics must trump everything, and that every decision we make about a person’s suitability for a judgeship or a deanship or a professorship or whatever, has got to turn on politics. And we will have battling factions in favor and against anybody. We see that playing out, especially now in the courts, where any nomination is fought to the hilt by partisans on one side and the other. Professor Chemerinsky, as I said, takes a very progressive view of the Constitution, but he is an honest scholar. And I can see no reason whatsoever to think that he is unsuitable as the dean of a law school just because of the ideas he has about, oh, the death penalty, for instance.
Martinez: Well, George, as you said, he will indeed now become the first dean of this new law school at UC-Irvine — I guess number 39 in the state of California. It just seems to have been handled so poorly by the president of that university. Wouldn’t he have just anticipated this is probably a bad idea to start changing his mind — and this is all done publicly?
Leef: You would think so. It’s been a terrible embarrassment for UC-Irvine and Michael Drake, who is the chancellor who made this decision. Yes, you would think he would have anticipated this. Oftentimes though, you find people who aren’t playing with their own money and who frequently make very foolish decisions and then have to backtrack when they start taking the heat on it.
Martinez: And that’s exactly what happened here. Well, George, I think the broader question that this brings up is the role of the academic in our public policy debate. And interestingly enough, we here at the John Locke Foundation have a special project called the Faculty Affiliate Network, and last October Professor Chemerinsky was a member of a panel of different professors who discussed this very issue. So let’s review what Professor Erwin Chemerinsky of Duke had to say about this very issue [on October 25, 2006], and then we’ll get your comment.
Chemerinsky: Let me start with a disclaimer. I have never been comfortable with the phrase public intellectual. I am not sure what it means, and it sounds very pretentious. And I have to also give the disclaimer that I am somebody who’s written literally hundreds of op-ed pieces. I have done — and it’s not an exaggeration — thousands of media interviews. So there is something self-serving in what I am about to say. But let me try to explain why I have made the choice to do this over the years. In part it’s because I am an educator, and by going on TV or radio or writing an op-ed piece, I have the chance to educate a much larger audience than I will ever see in a classroom. Probably the most sustained media work I ever did was during the O.J. Simpson trial in 1994 and ’95, and I realized at the end of it that I had the opportunity through the O.J. Simpson case commentary to educate a much larger audience about the law than I will ever see in all of my classrooms put together. And to the extent that I think it is good to educate people about the law, I am very glad that I did it. I also think that it’s important to use our positions to influence public policy. The reality is that, by virtue of being academics, we have positions where people look to us for opinions, that we have the opportunity to exercise influence. And I think having that opportunity we have the duty to do so.
Martinez: George Leef, your response to [the Oct. 25, 2006 comments by] Erwin Chemerinsky?
Leef: Well, I’m in agreement with him. I am a fervent believer in the marketplace of ideas. I want thinkers of all political persuasions to have the opportunity to present their views to the public. If Professor Chemerinsky wants to try to influence public policy, more power to him. And we need to have people who will disagree with him, where he is mistaken.
