While I think Elena Kagan has done some very good things at Harvard Law School (by all accounts the place is much more hospitable for conservative students and scholars than it was when I was there in the early Nineties), I was troubled by a comment she made on a recent academic freedom panel. As Inside Higher Ed reports, the question she presented was whether the University of Minnesota should have hired Robert Delahunty, a man who achieved notoriety for his role in drafting the Justice Department’s so-called “torture memo.” Her response? He should not be hired because — as she put it — “I would say, ‘Don’t bring in people whose views are antithetical to the core values of your institution.’ ” She then went on to say that he shouldn’t be fired if he was already tenured, but he shouldn’t be hired in the first instance.
Wait just a moment. If you understand what the “torture memo” really was, then what Dean Kagan is saying is that a “core value” of her institution is that you don’t provide what you believe to be truthful and accurate legal advice if that advice leads to the ideologically “wrong” answer. The torture memo addressed complex legal questions regarding the applicability of certain international treaties to combatants fighting without a uniform and without national affiliation. Is it Dean Kagan’s opinion that those questions should not even be asked? Should lawyers — if asked these questions — respond that they know the morally correct way to treat combatants and that any question about legal limits is therefore irrelevant?
It is difficult to overstate the anti-intellectual and self-righteous implications of such a statement — especially within the practice of law. Every day, lawyers across American answer legal questions from clients regarding the extent of legal prohibitions or protections. Often those prohibitions or protections differ from the lines that the lawyer himself or herself would draw, but that does not relieve them from the obligation to provide truthful and accurate advice. Is it Dean Kagan’s idea that Harvard-trained lawyers should function essentially as a new priest caste that refuses even to inquire into the legality of practices they object to? If so, I would love to see Kagan spell out the values that guide these new priests. Where can we find Harvard’s canon law?
As long as the project to define this canon law is underway, as a graduate of Dean Kagan’s law school, I would also like to know the school’s “core values” regarding a number of additional issues, including (but not limited to) abortion, free speech, health care, gun control, social security, welfare, tariffs, immigration, emissions standards, mining practices, nutritional disclosure statements on candy bars, the definition of an “antique” in consumer protection laws, small-unit discipline in Army Reserve units, state by state rules for lotteries and games of chance . . . The list goes on. In my almost 13 year legal career, I’ve been asked questions about these issues (and much more!) I fear that I may have — more than once — violated Harvard Law School’s “core values” with my analyses.
As I said, Dean Kagan has done some good things, but this statement strikes me as not just inconsistent with a spirit of free inquiry and open debate but also inconsistent with the way she has governed her own school. I hope she misspoke.