Bench Memos

Law & the Courts

Erwin Chemerinsky’s ‘Silly’ and ‘Obviously Fatuous’ Posturing—Part 1

I was very surprised, at the outset of my Appellate Judges Education Institute panel last Thursday, to hear law professor (and UC Irvine law school dean) Erwin Chemerinsky start to set forth his ridiculous claim that the Senate had a constitutional duty to hold a hearing and an up-or-down vote on President Obama’s nomination of Merrick Garland to the Supreme Court. Surely, I thought to myself, he’s not really going to try to bamboozle an audience of intelligent judges, is he? But, yes, he did try to do so.

When Chemerinsky finally finished his opening remarks, I explained why his claim was patently wrong. In the course of doing so, I evidently labeled his claim (and/or some of his supporting arguments) “frivolous,” “silly,” and “insipid.” For when it was his turn again, Chemerinsky recited my use of those terms and indignantly declared that such terms have no place in civil discourse. To which I responded: You earned them.

I am now pleased to provide a fuller response:

1. It won’t surprise anyone familiar with Chemerinsky’s stridency that he doesn’t practice what he preached—not even in prepared writings where, unlike in my extemporaneous comments, he had the full freedom to revise his remarks to tone them down. Consider some examples:

Justice Brennan wrote that whereas “the Guaranty Clause is not a repository of judicially manageable standards, … [j]udicial standards under the Equal Protection Clause are well developed and familiar.” This is an obviously fatuous distinction because both clauses are equally vague and the principle of one-person one-vote could have been articulated and enforced under either constitutional provision. [Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. Colo. L. Rev. 849, 871 (1994).]

[O]ur approach avoids the silly textualism that is employed by the majority in Dale. [Erwin Chemerinsky, Perspectives on Constitutional Exemptions to Civil Rights Laws: Boy Scouts of America v. Dale: The Expressive Interest of Associations, 9 Wm. & Mary Bill of Rts. J. 595, 609 (2001).]

This fatuous distinction persuaded only three of the nine Justices. [Erwin Chemerinsky, Turning Sharply to the Right, 10 Green Bag 2d 423, 431 (2010).]

Conservatives like to pretend that judicial decisions require no discretion, that justices should just follow the law and that their values are irrelevant. This is silly. [Erwin Chemerinsky, Do Race and Gender Matter for the Supreme Court, Los Angeles Times, May 27, 2009.]

Therefore, because it shows that all Justices, liberal or conservative, come to results based on their views and ideology, Bush v. Gore should be used to forever bury silly adages like “judges are umpires who don’t make the rules, but apply them” and “judges should apply the law, not make it.” [Erwin Chemerinsky, Commentary: The Meaning of Bush v. Gore: Thoughts on Professor Amar’s Analysis, 61 Fla. L. Rev. 969, 970 (2009).]

The argument based on procreation was silly. [Erwin Chemerinsky, A Great Moment for Liberty and Equality, ACS Blog, June 26, 2015.]

2. Chemerinsky’s preaching is unsound. For starters, frivolous is itself a legal term for a baseless claim (see, e.g., Fed. R. Civ, P. 11(b)(2) (attorney certifies that a claim is warranted by “a nonfrivolous argument) and is routinely used by judges of all sorts to bear that meaning. (To take but one of thousands of examples: Justice Ginsburg writes in McQuiggin v. Perkins that “frivolous petitions should occasion instant dismissal.”) Silly, as Chemerinsky’s own fondness for the term illustrates, is a common synonym for frivolous.

I accept that terms like insipid (and Chemerinsky’s obviously fatuous) are harsher than frivolous. But again, as Chemerinsky’s own usage shows, there are times when a speaker or writer will determine that harsher rhetoric is warranted.

That said, I regret using the term insipid at the event the other day, not because it was inaccurate—Chemerinsky’s claim (see my forthcoming Part 2 post) is indeed insipid—but because it was likely ineffective: Someone who, trying to follow the oral back and forth, didn’t recognize how inane Chemerinsky’s claim is wouldn’t be further persuaded by the label, and my use of the term gave Chemerinsky an excuse to play victim.

3. It is Chemerinsky who has committed a very grave breach of standards of civil discourse. As I will discuss more fully in my Part 2 post, he has recklessly accused Republican senators of the very serious matter of violating their constitutional oaths. In so doing, he has embraced a position that contradicts, without explanation, his own previous arguments—a position that, unless his intellect has been utterly besotted by his political passions, it is impossible to accept that he could genuinely believe. And in advancing that position, he has, inconsistent with his obligations as a scholar, failed even to acknowledge, much less try to confront, the glaring defects that others have pointed out to him.