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the first time in a long time, the American academy and the Left-liberal
professorate that commands it are in trouble. Before September 11,
for all the complaints from outsiders about ideological bias, the
status quo at our colleges and universities seemed secure. Not only
did the radicals have tenure, but the Left looked poised to give
itself an unbreakable lock on the professorate by replacing their
last recalcitrant elders, soon to retire, with still more postmodernists.
Now, with the
attacks of September 11 and the ensuing public outrage over the
vituperative and one-sided "blame America first" response
of the tenured radicals, the academy may finally be facing serious
public questioning of its legitimacy — along with widespread
dismissal of its relevance and credibility. So long as radical professors
wrote in incomprehensible jargon and confined themselves to discussions
of literature or popular culture, the public was content to ignore
them, or to let out an occasional chuckle at their expense. But
with a question of supreme national importance on the line, the
public is watching the academy as never before, and shows every
inclination to judge and find wanting what it sees there.
Without this
war, the question of the academy might never have come to a head
in a way that could seriously affect its present course. Yet only
a year ago, we had a foreshadowing of what was to come in the dramatic
national dust-up over the case of Bush v. Gore. We
can see this now thanks to an important article, just published
in The
Wilson Quarterly by George Mason University Law Professor,
Peter Berkowitz, and Benjamin Wittes, a member of the Washington
Post's editorial staff. The article is called "The Professors
and Bush v. Gore," and its theme is the deeply
partisan and surprisingly thoughtless response of America's legal
professorate to the court case that helped decide our last presidential
election. In retrospect, the academy's irresponsible trashing of
Bush v. Gore looks like a dress rehearsal for its
response to the war against terrorism.
Berkowitz and
Wittes do not attempt to argue that Bush v. Gore
was rightly decided. Instead they call for an honest debate about
what is in fact a very tough case. For all the ink spilled over
this controversial decision, the remarkable fact is that genuine
consideration of Bush v. Gore has barely begun. As
Berkowitz and Wittes convincingly show, the legal academy has never
really come to grips with the core arguments of Bush v.
Gore, but instead has simply condemned, it, in nearly one voice,
as an outrageous, hypocritical, illegitimate, and politically motivated,
decision. Alan Dershowitz, in his recent book, Supreme Injustice,
designated Bush v. Gore "the single most corrupt
decision in Supreme Court history." (In two pieces for NRO,
Berkowitz dismantles the attacks on Bush v. Gore
put forward by both Alan
Dershowitz and prosecutor
Vincent Bugliosi.) Dershowitz's judgment was echoed by American
University law professor Jamin Raskin, who opened an article in
The Washington Monthly by calling Bush v. Gore
"quite demonstrably the worst Supreme Court decision in history,"
and who went on to compare the case unfavorably with the notorious
Dred Scott decision. Berkowitz and Wittes make it clear that
these hyperbolic claims, and others like them, are baseless.
By carefully
analyzing critiques of Bush v. Gore from three of
the country's most eminent legal theorists — Cass Sunstein,
Ronald Dworkin, and Bruce Ackerman — Berkowitz and Wittes show
that even the most distinguished critics of Bush v. Gore
offer virtually nothing in the way of evidence or argument that
might justify their bitter condemnations of our nation's highest
Court. On the contrary, Berkowitz and Wittes show that the critics
of Bush v. Gore rely on mere assertion, misstate
critical matters of fact, and fail even to accurately restate or
come to grips with the actual legal reasoning of the Court's decision.
In view of all this, Berkowitz and Wittes turn the accusations of
irresponsibility and partisanship back upon the professors. It is
the legal academy's own legitimacy — their reputation
for thoughtfulness and integrity — not the Court's, that should
suffer when the public finally comes to understand how thoroughly
ungrounded last year's criticisms of Bush v. Gore
really were.
New York University
law Professor Ronald Dworkin, for example, perhaps the most respected
liberal legal theorist in the country, although charging the high
Court with staining its own reputation through an act of rank partisanship,
neither accurately states nor fairly engages with the central arguments
of the decision in Bush v. Gore. In that decision,
the Court points to four distinct features of the manual recount
ordered by the Florida supreme court which, taken together, violated
the fundamental right to vote safeguarded by the equal protection
clause of the 14th amendment. Yet Professor Dworkin condemns Bush
v. Gore without even mentioning, let alone analyzing, three
of the four equal-protection problems at the center of the decision.
Dworkin then
goes on to castigate the Court for "violating the most basic
principles of constitutional law," by imposing its own interpretation
of Florida law on the Florida supreme court. Yet, as Berkowitz and
Wittes point out, Dworkin ignores a critical passage in Bush
v. Gore in which the Court bases itself on the Florida supreme
court's interpretation of Florida law, an interpretation that Dworkin
barely acknowledges, and certainly fails to analyze.
And the problems
get worse. Only a couple of weeks after the decision was handed
down, University of Chicago law professor Cass Sunstein, arguably
the most politically influential legal scholar in the country, declared
that the Court had "discredited itself" with its "illegitimate,
unprincipled, and undemocratic decision." Yet at the time,
Sunstein presented no arguments in support of his opinion. Nor have
Sunstein's subsequent writings come close to justifying his early
inflammatory remarks, which at the time helped to incite the outrage
of Gore supporters throughout the country, and which were clearly
meant to impeach the reputation of the Court itself.
But the most
surprising section of the Berkowitz-Wittes article may be their
examination of the charge of hypocritical abandonment of their judicial
philosophy, an accusation leveled at the conservative majority in
Bush v. Gore by nearly every critic of the case —
which is to say, by nearly the entire legal academy. Supposedly,
by reversing state supreme-court holdings on the grounds that they
violate federal constitutional imperatives, the Court's conservatives
were betraying their own federalist principles. Yet, as Berkowitz
and Wittes point out, none of the scholars who leveled this charge
of hypocrisy bothered to offer an actual analysis of the conservative
justices' position on federalism.
Offering just
such an analysis, Berkowitz and Wittes show that, in a variety of
important cases, members of the majority in Bush v. Gore
have voted to overturn state-court rulings on federal constitutional
grounds. Only six months before Bush v. Gore, for
example, the Court's conservatives overturned a New Jersey state
supreme-court decision that the Boy Scouts could not discriminate
on the basis of sexual orientation, on the grounds that the law,
so interpreted, violated the Boy Scouts' First Amendment rights
of expressive association. While the precedents cited by Berkowitz
and Wittes may not definitively turn aside the federalism-hypocrisy
argument, they certainly place the burden on the high Court's critics
to support their daring charges with more than mere assertion.
In the end,
Berkowitz and Wittes give us the picture of a legal professorate
that has abandoned scholarly responsibility in favor of partisanship,
to the point of attacking, without justification, the legitimacy
of one of the country's most critical institutions. In doing so,
Berkowitz and Wittes turn the questions of bias and legitimacy back
upon the professors themselves.
But how are
we to account for so thoroughgoing a failure on the part of the
legal academy to meet its most basic responsibilities of fair argumentation?
The answer is not far to seek. Like anyone else, law professors
are fallible human beings. Even the most responsible and respected
scholars find it difficult to remain honest and fair when their
political interests are at stake. Our federal system solves this
problem by setting diverse powers and interests astride one another,
each to keep watch on the excesses of its counterpart. But with
the effective takeover of the academy by the left side of the political
spectrum, the system of intellectual checks and balances in the
world of scholarship is no more. If our liberal law professors haven't
bothered to offer minimally sound arguments in justification of
their partisan assaults on our highest Court, surely it is because
that academy has been denuded of the conservative professors who
could call them to account for their excesses and force them to
provide evidence for their arguments.
I remember
how shocked I was just a few days after last November's election
when ABC's Nightline featured a segment on the Florida election
controversy with both Cass Sunstein and Pam Karlan, two law professors
who later became famous for their energetic opposition to Bush
v. Gore. I was appalled that ABC had allowed this bitterly
contested election dispute to be adjudicated on air by two Democratic
partisans, however much they tried to portray themselves as neutral
experts. After all, Sunstein himself had published a cover article
in the pre-election issue of The American Prospect that endorsed
Al Gore. Yet here were two Democratic partisans on Nightline, being
treated as though they were giving neutral accounts of what may
have been the most politically charged legal controversy in American
history, without a conservative legal scholar in sight. Less than
a month later, Sunstein was denying that his signing of a now infamous
pro-Gore ad in the New York Times (along with Rosie O'Donnell,
Bianca Jagger, and friends) was a partisan act. And since the election,
Sunstein has advised Democratic Senators on how to go about blocking
judicial appointments by President Bush. Yet somehow Sunstein has
managed to maintain a media reputation for non-partisanship.
None of that
would be possible if there were enough conservative legal scholars
in the academy to call people like Sunstein on their biases and
expose their mistakes. And of course, our liberal professors would
undoubtedly return the favor for their conservative colleagues.
There is nothing original in a call for two-sided intellectual debate.
Yet, however fundamental the point, we have forgotten it. By publishing
their article, Berkowitz and Wittes have done nothing more, or less,
than to illustrate the functioning of what John Stuart Mill believed
to be the ideal of debate in a liberal society. A stronger argument
exposes the flaws in a weak one, leading to newer, deeper, more
productive debate. But why has it taken a year for us to get to
this point — long after the post-election bitterness has been
sown?
And now with
this war, it's happening all over again. No sooner had the World
Trade Center hit the ground than the recriminations against U.S.
foreign policy by the academic Left began. In the confusion, few
of the protesting professors bothered to notice that the demands
of the terrorists went far beyond objections to U.S. policy on Israeli
settlements, or our sanctions against Iraq. Nothing short of U.S.
exit from the Middle East, the destruction of Israel, and the replacement
of secular Arab governments by fundamentalist theocracies would
appease them. And for all the attention to "root causes,"
among the Left, any consideration of the contribution of Islamic
culture to the problems of Middle Eastern modernization was banned.
Nor were the token number of hawks left in the academy sufficient
to force consideration of these issues into the debate. (For a discussion
of these issues, see my "Getting
to the Root.")
But for all
that, the tide is turning. True, there exists today no conservative
professorate adequate to expose the foibles and biases of the academic
Left. Yet with its one-sided and tendentious response to the September
11 attacks, the academy is exposing and discrediting itself in the
eyes of the American people. That may or may not be enough to overcome
the realities of tenure and the demographics of the professorate,
but for the first time in a long time, there is at least the hope
that the country will come to understand how profoundly our most
precious institutions — and even the elemental security of
our nation — depend upon the restoration of minimal intellectual
and political balance to the academy.
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