In the early days of blawging, one of my beefs with the academics was that they didn’t engage in humanspeak with lawyers. Or to be more precise, they wouldn’t tolerate the fact that lawyers didn’t use the moderated speech of the Academy, where calling something “interesting” was tantamount to saying your baby was ugly and you’ve got a booger hanging from your nose.
It was, in a word, frustrating when the prawfs came up with some interesting idea but couldn’t manage to engage with practicing lawyers in a way that enabled an overlap in the discussion. They had theirs. We had ours. To the extent there was any overlap, it was usually some sniffling prawf offended at someone (often me) who disagreed with their brilliance in comprehensible terms. But at least it was a substantive disagreement, even if we didn’t use the word “curious” to describe it.
And then, all hell broke loose.*
The flood of criticism, much of it on the Immprof listserv and Prawfsblawg, that has engulfed me (while traveling abroad, no less) and my co-author Rogers Smith deserves a reply. Fortunately, mine can be fairly brief as Rogers has already published his own series of replies on the Immprof listserv, with which I agree almost entirely.
But here is where we differ: Rogers seems less troubled than I am by the toxic, corrosive, name-calling, motive-assuming, and debate-chilling tenor of a few of the published comments, typified by that of Paul Schmidt on Immprof, who stated (for instance) that “[s]omebody should take these characters [Rogers and myself] on and ‘out them’ for the race baiters that they truly are.”
Over the past few years, I’ve watched in disgust as academics have willfully eschewed intellectual honesty for their cause. From the revenge porn debates to campus rape, prawfs lied about law without shame or criticism from their cringing colleagues, fearful of being the target of the sort of venomous attack as happened here. Then came Trump, and icons of academia like Larry Tribe forfeited a career of credibility in the name of the fight.
As nasty, ugly and obvious as all this was, at least it remained couched in language that purported to address the issues. Sure, it tended to be made up of passive-aggressive lies, but this is different.
“[s]omebody should take these characters [Rogers and myself] on and ‘out them’ for the race baiters that they truly are.”
There is a serious legal debate about the underlying issue, but take the position disfavored by passionate progressives and the response is at the level of the worst SJW shit-for-brains on twitter.
Rogers, fine scholar, idealist, and gentleman that he is, imagines that even this bombastic exercise in impugning the good faith and motives of two serious scholars who have long advocated more generous immigration policies will somehow advance the cause of egalitarian solidarity. To me, this is wishful thinking that can never justify such ad hominem comments among scholars about a genuinely difficult legal and policy issue. Far from coalition building, this kind of self-righteous intolerance can only confirm the worst suspicions of the coalition partners Rogers hopes to attract.
Peter Schuck is right, this will not “advance” any useful cause or discussion. But more importantly, trying to whitewash this ad hominem attack should be intolerable. Outside of law, we’ve seen what happened with Charles Murray and Christina Hoff Summers, who have been turned into pariahs in woke company and the targets of de-platforming and violence. Here, a legitimate argument, whether you agree or not, on a significant issue of law might be removed from the table lest anyone make the argument and be attacked as a racist.
Many in the academy believe that it’s necessary to remind us hourly about how horrible Trump is, as if anyone would forget. Some do so in hysterical terms. Some try to intellectualize it, as if more words makes the same insipid points smell less stale. We get it. Trump is a vulgar, amoral ignoramus. Saying so every time he burps doesn’t mean he’ll be impeached momentarily and Hillary installed in his place.
But for scholars to lose the ability to discuss legitimate constitutional issues for fear they will be attacked as “race baiters” goes a few steps beyond anything that can be tolerated. It’s not just that it won’t help in building a coalition of thoughtful scholars willing to engage in intelligent debate, but it will silence academics who would raise valuable questions about legal interpretation and history.
About a decade ago, I learned from some of my friends in the legal academy about their fears of challenging feminist lawprofs.** It wasn’t that they didn’t see what was happening, but they didn’t need the tsuris that would come from speaking out against it. And they were certain that they would be castigated by their peers for their efforts, as nobody challenged feminists on campus and survived to tell about it.
You may also recall when Josh Blackman and Seth Tillman challenged the interpretation of the Emoluments Clause, they were accused of being part of a vast right-wing conspiracy rather than presenting an honest intellectual dispute. At least some prawfs called bullshit on the insane accusation.
Trial lawyers may have broad enough shoulders to withstand the pebbles thrown at them by the woke baby lawyers on the twitters who call them racist and sexist for their failure to adhere to social justice orthodoxy. But prawfs aren’t always made of such stern stuff, and have some institutional issues with calling out the intellectual frauds within their ranks, such as tenure and class assignments.
But when a legit constitutional issue, as here, begets a response like “race baiters,” it has to be condemned if we’re to maintain any semblance of legal integrity. When scholars can no longer debate issues without being attacked by their own as racists for taking the unwoke view, the law will die. It’s happened before, but this is worse.
While I would hope scholars with a smidgeon of shame and intellectual honesty will call out this garbage, I do so because there are no names anyone can call me that I haven’t been called before: Paul Schmidt and his ilk can go fuck themselves.
*I note, because otherwise someone else surely will, that the underlying issue involved the controversy of the moment, birthright citizenship. This post is not about birthright citizenship, so don’t express your views on the issue or your comment will be trashed.
**About a decade ago, a blog called “Feminist Law Profs” was at the cutting edge of radical feminist legal thought. If you’ve never heard of it, that’s because it’s too bland and tepid today as to make even a ripple. But back then, they tolerated no disagreement, and anyone who questioned their views was immediately reduced to a misogynist and sexist. Not challenged, mind you, but merely questioned. Ann Bartow had x-ray vision and could see sexists through walls and under every rock.