Hamilton, Madison, and Jay

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Tuesday, September 11, 2007

This is appalling; UPDATED with further thoughts and links

OK, readers know we're intellectually honest here, and this story makes me sick. Hugh Hewitt gets the hat-tip and, irnically, the LA Times has the full story:

Just days after he signed a contract to become the first dean of UC Irvine's new law school, Erwin Chemerinsky was told this week that the deal was off because he was too "politically controversial."

Chemerinsky said in an interview today that UC Irvine Chancellor Michael V. Drake had flown to North Carolina on Tuesday and told him at a hotel near the airport that that he did not realize the extent to which there were "conservatives out to get me."

Chemerinsky, one of the nation's best known constitutional scholars and a liberal professor at Duke University in Durham, N.C., said he signed a contract last week after being offered the job Aug. 16. He said he had lined up a board of advisors for the new school, including the deans of the UC Berkeley and University of Virginia law schools and three federal judges, including Andrew Guilford, a Bush appointee from Orange County.

Chemerinsky said he was saddened by the decision. "It would have been an exciting opportunity to start a new law school. We live in strange times."

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that the decision "had been difficult for him."

He said that "concerns" had emerged from the UC regents, which would have had to approve the appointment, Chemerinsky said. The professor said Drake told him that he thought there would have been a "bloody battle" among the regents over the appointment.

The chancellor's office said Drake was meeting with the university's communications office and was not immediately available for comment.

John Eastman, a conservative constitutional scholar and dean of Chapman University Law School in Orange, who frequently debates Chemerinsky, called UCI's move "a serious misstep."

Chemerinsky has been a professor at Duke since 2004, after 21 years at the USC law school and was one of the finalists for the dean's job at Duke last year, before the university chose David Levi, a federal judge in Sacramento, for the job.

This is disgusting that the decided to rescind the offer based on political ideas rather than the merits of his credentials. If Erwin was a moron, and couldn't comprehend the law, then I could see that. But he's not. Look, don't get us wrong here. We think he's wrong on quite a bit of legal issues and topics, but his credentials speak for themselves. Erwin has argued several cases at the US Court of Appeals level, as well as cases before the Supreme Court itself. Additionally, he served as a witness for the Alito hearings i9n 2005.

The man is well respected, and regardless of the fight that might have ensued, the school shouldn't have withdrawn the offer, especially after he signed a contract for the job. If the fight grew to be too much, I'm positive that Erwin would have bowed out. But given his tenacity in debate with John Eastman when they are both on Hugh's show, I doubt he would have walked away without a fight showing the regents he was perfectly capable of carrying out the duties as dean of the new law school.

I condemn UC-Irvine for this move. It was chicken-sh*t on their part. Forget the politics. Erwin rarely cites politics in his conversations on the air. He always cites the law and the precedents to back up his arguments, which is no different than any other lawyer is expected to do. If I were the chancellor of any other school, and I needed a new dean of the law school at my university, I'd be proud and honored to have Erwin there, regardless of the fight it would take to get him there.

Publius II

UPDATE: More from Brian Leiter:

Kevin Gerson, Associate Director of the UCLA Law Library, points out to me that Art. 9, § 9 of the California Constitution, regarding the powers and duties of the Regents of the University of California, provides that, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

Say what you want about Erwin's political biases, but this goes beyond that. Marcie has said she'd be "honored" to have Erwin as a professor. He is among the top 20 legal minds int he country on Con Law (one of her specialties). This goes more towards the idea that the university supposedly would have had problems approving him because of his political leanings. IRRELEVANT! Utterly and completely irrelevant. Can the man competently carry out his duties as a dean of the new law school? You bet he can. That is the ONLY thing that this should be about. But apparently that doesn't ring true, and as Brian Leiter points out, the chancellor has issued the same blah, blah, blah; move along, nothing to see here, CYA statement that shows just how spineless this man is.

Over the past several months, UC Irvine has conducted a nationwide search for the founding dean of our School of Law. Last week, we made an offer to Duke Professor Erwin Chemerinsky, an eminent academician, legal scholar and commentator. The offer was contingent on approval of the UC Regents.

Since then, I have come to the very difficult conclusion that Professor Chemerinsky is not the right fit for the dean’s position at UC Irvine at this time. I met with him on Sept. 11 to inform him that we were rescinding our offer and continuing the recruitment process.

Yeah, he's not the right fit because the regents have a problem with a liberal. Can anyone imagine what it would be like had this happened to Cass Sunstein at the University of Chicago? We all know Professor Sunstein is an admitted liberal, but he doesn't let his political ideology interfere with the instruction of future attorneys, especially in the realm of Con Law.

We may upset some readers about this subject because we're defending Erwin, but we'll defend him with our final pixel and breath. This was extremely gauche -- how the chancellor hired then fired him. This attacks the idea that those hired by a public university (they do receive taxpayers funds in addition to donations) won't be judged on their merits and credentials, but rather it opens the door to look at their politics.

In effect, it is a direct attack on their First Amendment rights in applying their talents in academia. No one is going to be 100% neutral, and the regents aren't going to completely agree with everything an applicant has to say. But the basis of their decision should be, as it is with the president and the congress, based on the applicant's abilities. The regents and chancellor at UC-Irvine decided not to do that. they decided to make this political, and it holds serious repercussions for anyone to ever be hired at a public university. And it speaks volumes to the next guy they offer this position to. How are they going to feel knowing they weren't the first choice, and that they were only approached because the regents might -- mind you, MIGHT -- have had a problem with the former guy based on politics. It sets the bar far too high, and has little to do with their job of choosing the best person for the job.

Publius II

UPDATE II: Both Professor Bainbridge and the Wall Street Journal's Law Blog weigh in on this. Additional commenters include:

Appellate Law and Practice
Professor Reynolds here and here
Dynamics of Cats has a mention of it
Blast Off
Workplace Prof.
And Radio Left

Everyone virtually agrees this was a dumb and gutless move by chancellor Drake.

Publius II

UPDATE III: I'm sitting here and listening to Hugh Hewitt's show and there have been a few callers that don't seem to have a problem with Erwin's short tenure and subsequent firing. This I don't understand because at the heart of this is Erwin's First Amendment rights being quashed.

It is asinine that anyone be fired from a job based solely on their political beliefs. Can anyone imagine that? Can you imagine the president telling David Petraeus he can't command US forces because he's a Democrat. Or Professor Glenn Reynolds because he's too much of a moderate, therefore he couldn't teach law. Or, how about forbidding Ruth Bader Ginsburg from the Supreme Court because she has extremely liberal views on the law.

Credentials, people. That's what counts. Erwin's credentials include:

--Professor of Law at Duke University since 1 July, 2004.
--Professor of Law (for twenty years) at both USC and DePaul.
--He has published four books (three of which have entered multiple editions, including an outstanding casebook).
--He has a regular column on the United States Supreme Court carried by California Lawyer, the Los Angeles Daily Journal, and Trial Magazine.
--And he has taught undergrad classes on poli-sci.

While we can argue about Erwin's credentials, and whether or not they're enough, no one can deny he's not highly qualified to handle this position. I go back to the chancellor's spineless comments:

Professor Chemerinsky is a gifted academic and his credentials are outstanding. I respect him greatly. My decision is no reflection whatsoever on his qualifications, but I must have complete confidence that the founding dean and I can partner effectively in building our law school. As in all decisions, I must do what I believe is in the best interests of our university.

For crying out loud, he's a known professor and a superb litigator. He knows case law and Con Law cold, better than most lawyers we know. He would attract the best and brightest to UC-Irvine's law school. For Chancellor Drake to say that he couldn't work well with Erwin shows how utterly and completely foolish this man is. The regents ought to fire Chancellor Drake for his inept decision.

Publius II

UPDATE IV: Over at Volokh Conspiracy Professor Eugene Volkh and Assistant Professor Ilya Somin weigh in. From Eugene's post:

This having been said, while I hope to have more to say on the First Amendment and academic freedom issues, I should caution against treating Deanships or Chairships the same way as scholarly positions. As the Second Circuit correctly held in Jeffries v. Harleston (cite and details later), the two are quite different. It is generally not proper, for instance, to refuse to appoint a professor because he's too controversial; but it may well be proper to avoid deans who are lightning rods for criticism, or likely to run into trouble with the Legislature or with others.

The example I give is Dean Ken Starr of Pepperdine. If he wanted to move to UCLA, I'd be delighted -- but if the faculty, the administration, or the Regents opposed such an appointment on the grounds that he'd be too controversial, and the controversy would get in the way of his effectiveness, I would not condemn their position as a breach of academic freedom, or of the First Amendment.

In the case of a professor like Ward Churchill (of which a couple of e-mailers have cited in criticism), his actions warranted his firing. He was controversial consistently, and that brouhaha did influence his ability to teach, and be an effective instructor. Again, we go back to the very first update I posted where the regents are held "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

This decision was made purely on politics, of which the regents aren't allowed to do. That's what this is about. This is a serious case of the First Amendment rights of one person being trumped over a possible -- I repeat, possible -- controversy. I still say the chancellor (a man with only two year's experience at UC-Irvine, and obviously had a hack write up a statement that bureaucratically covers his butt) should be fired, and in the interest of of settling this issue, the regents should re-invite Erwin to join the staff. Erwin will show them that he can do the job, and that he won't let his political beliefs get in the way.

Publius II


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