Bench Memos

Nevada Law Profs (and Others) vs. Rule of Law—Part 1

“There are lots of powerful, vengeful people among the elite. The progressives’ pieties are to be followed without deviation or the heresy axe will fall.”

So wrote Nevada state bar president Alan J. Lefebvre near the end of his recent Nevada Lawyer column criticizing the state attorney general for her remarkable decision to fail to defend Nevada’s marriage laws (a decision all the more extraordinary as the state had prevailed in the district court). Proving his point, some fifty members of the faculty of UNLV’s law school have signed an insipid letter objecting to his column, the law school’s dean has similarly weighed in, and the LGBT Section of the Nevada bar has called for the state bar to remedy his supposed abuse of office.

(I explain in this Weekly Standard essay why state attorneys general have an ethical duty to defend state marriage laws.)

I’ll parse the faculty letter in this post, the dean’s letter in the next post, and the LGBT Section’s letter in a third.

The UNLV faculty letter asserts that the “tone” of Lefebvre’s column is “undignified” and that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references.” It claims that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage,” and it complains that he “disparaged” the attorney general’s decision not to defend state marriage laws. It contends that Lefebvre’s column “was lacking in the civility that should guide the behavior of every Nevada attorney.”

Who knew that, in the desert of Nevada, UNLV law school professors were such delicate flowers that could be withered by comments as mild as Lefebvre’s? Some observations:

1. I don’t know which passages of Lefebvre’s column the faculty signatories particularly object to, but their assertion that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references” is patently false, as any reader of the column will quickly discover.

Lefebvre presents an extended argument that the state attorney general was wrong to fail to defend her client and to abandon the victory that the state had won in the district court. Yes, he enlivens that argument with some colloquial passages—e.g., the duty to defend the state constitution “applies when it is more than 110 degrees and on overcast days alike,” “Wow! The Attorney General tapped out, on that basis!”—but I don’t see how such informalities are an offense to civility.

What “insults” does Lefebvre commit? The letter doesn’t specify any, and I don’t see any. Yes, Lefebvre, after demonstrating that the attorney general’s decision was ill-founded, speculates that she “likely feared the consequences if she didn’t yank … the defense of the appeal.” That is surely reasonable speculation, and questioning the motives of a public official isn’t tantamount to an insult. (Imagine: political considerations affecting a politician’s decision!)

The claim that the letter contains “ad hominem attacks” demonstrates only that fifty law professors don’t know what an ad hominem attack is. In fact, Lefebvre so avoids personalizing his criticism that he doesn’t even name the attorney general.

One person’s “sarcasm” is, I suppose, another person’s gentle humor. Again, I see nothing in the column that fairly invites criticism on that score.  

I confess that I have no idea what the complaint about “sectarian references” means. Perhaps it’s an effort to stigmatize support for marriage as inherently “sectarian.” The only passage in the column that remotely involves religion is Lefebvre’s closing observation that “when this is all over, somebody in the federal government owes an apology to the State of Deseret” (for the federal government’s outlawing of polygamy in the 19th century). There is nothing “sectarian” about Lefebvre’s observation (I’ve heard folks on both sides of the marriage debate make much the same point), and insofar as the letter’s charge is coded anti-Mormonism, Lefebvre’s bio suggests that he’s Catholic, not Mormon.

2. The letter wrongly asserts that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage.” No, his actual (and ostensible) subject was the state attorney general’s failure to defend state laws on marriage. Beyond making the elementary argument that the state attorney general violated her duty (an argument that the faculty letter doesn’t confront), his column doesn’t set forth his own personal or legal views on marriage.

3. For some broader perspective on the faculty letter’s invocation of “civility,” here’s a story from December 2001, less than three months after the 9/11 attacks:

U.S. Marine recruiters visiting the University of Nevada at Las Vegas were met with hooting, catcalls and other disruptive tactics by members of the law school’s faculty and staff, reports columnist Ken Ward of the Las Vegas Review-Journal.

A student who witnessed the scene reported that Marine lawyers speaking at the UNLV Boyd Law School had their words drowned out by faculty who cranked up the volume on nearby televisions and talked and laughed among each other loudly. The student described the professors’ actions as “not only disrespectful but immature.”

The faculty is upset about the military’s “don’t ask, don’t tell” policy toward homosexuals.

Yes, that was more than 12 years ago, but it’s a safe bet that some of the law professors then directing “hooting, catcalls and other disruptive tactics” at Marine recruiters are among those now complaining of Lefebvre’s supposed lack of civility. As to the current situation, one well-informed source tells me: “Even by the standards of the modern American law school, UNLV’s faculty is remarkably intolerant of dissent. Opponents to the Orthodoxy are either evil or ignorant, take your pick.”

In sum, it’s evident that the faculty letter’s real objection is to the fact that Lefebvre is criticizing the state attorney general’s violation of her duty—just as bar officials around the country ought to be doing with respect to similar derelictions—and that it is hiding that objection behind the camouflage of baseless complaints about incivility.


The Latest