In Culture, the Legal Academy Leads — Antintellectualism Notwithstanding

The National Review spent last week expending an appropriate amount of mental energy on the things that really matter — like, is Obama a dangerous radical, because he knew black people? To the publication’s credit, David French answered in the negative, arguing, reasonably, that people change over time: “Law school Obama is not our president, and I’m not sure that the videos tell us much at all about the man who sits in the [O]val [O]ffice.”

Naturally, that’s not the last word on the issue. Conspiracy-theory-machine Andrew McCarthy takes his point, but still sees a radicalized Obama whose life path somehow disqualifies him from high office. To him, the President is a product of that toxic environment of liberal subterfuge — law school — and so remains a dangerous “other.” McCarthy, on the evils of the academic bar

I was interviewed by a reporter earlier today about the Gitmo bar’s infiltration of the Obama Justice Department. The reporter made the same point David does: While mostordinary Americans may think it radical for a lawyer to volunteer his services to file offensive lawsuits on behalf of the enemy against the United States in wartime, this is not considered radical in the legal community — there, it is “mainstream.” Well, okay … but that the radicals think of themselves as mainstream does not make them mainstream — they are still radicals. And what’s the upshot of all of this? Lawyers who thought our enemies were worth volunteering to help are now the lawyers who make counterterrorism policy for the country — something so radical as to have been inconceivable just a short time ago, but something that is happening in the Obama administration. And by working it from the inside, these lawyers are incrementally but noticeably moving the mainstream in a radical direction.

I grant that law students and faculty both occupy the far left of the mainstream political spectrum. When I started at NYU Law, coming from evenly-split Rice University in Texas, I found myself shocked (and deeply impressed) by how boldly NYU’s entire faculty staked out a progressive position on gay rights. Here was a school that apologized to its students for losing a Supreme Court case that forced them to permit recruiters from discriminatory employers (to wit, the Armed Forces Judge Advocate General) on campus, or lose >$20m worth of university-wide funding. Personally, I was more impressed that they fought the case at all, against such staggering, ultimately impossible odds.

At the time, bold opposition to the armed forces for its failed personnel policy — “Don’t Ask Don’t Tell” — was extreme. Today it seems prescient: NYU’s storied Dean Revesz and his legendary practicing professor, Burt Neuborne, prefigured the repeal of DADT and the new, stable status quo by just five years. This is “extremism” in the way that progressives are always extreme: anticipating and leading the charge for valuable social changes, like desegregation, that wouldn’t happen without us.

Similarly, it’s well-known that many major law firms and professors happily joined the “Gitmo Bar.” (Though for the record, I had more professors whose prior careers involved fighting terrorism than professors who worked to exonerate detainees wrongfully imprisoned for the same.) But the product of the “Gitmo Bar’s” collective efforts was a Supreme Court decision that, in ringing terms, upbraided President Bush for effecting an end-run around the most fundamental of our rights as Americans — habeas corpus — and provided detainees with the “radical” right to a fair trial. Kennedy’s opinion for the Court makes quite clear that the true “extremists” in counterterror policy, those outside of the mainstream, working actively and efficiently to subvert basic constitutional freedoms and change the very face of our country, were the Republicans in charge of the White House, who somehow read their non-existent mandate as a license to rule like a king over anyone loosely suspected of terrorism. Here, too, the liberal legal establishment’s chosen position wasn’t “radical” — it was anti-radical, and firmly in line with what would be, soon enough, established law.

This is to say, we should never allow our positions to be styled as “radical,” or non-mainstream, especially when a five-Justice majority of the U.S. Supreme Court clearly states that we were, in fact, right all along. And to the extent that the legal academy finds itself on the periphery of the mainstream, the answer isn’t to apologize, retreat, and dutifully support the status quo. The answer is to wait. We in the legal elite live in a world of facts, precedent, and consequence, and concern ourselves with what’s right, not what’s popular. So, if history is any guide, we’ll be right soon enough.


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