Jewish World Review Feb. 27, 2001 / 4 Adar, 5761
http://www.jewishworldreview.com -- IN my line of work a good laugh is hard to find, so I'm much indebted to Professors Michael Dorf and Samuel Issacharoff of the Columbia Law School for bringing a Web site entitled "673 Law Professors Say" to my attention.
Dorf and Issacharoff discussed the Web site at a conference this past weekend at the University of Colorado. The Web site (www.the-rule-of-law.com) is a sort of cyberspace manifesto, dedicated to the proposition that, in deciding the case of Bush v. Gore last December, the Supreme Court assumed, in the manifesto's own words, "the job of propagandists, not judges," and that indeed the outcome of the case can only be explained by the justices "acting as political proponents for candidate Bush, not as judges."
Dorf and Issacharoff tactfully describe these fulminations as "a rather extraordinary statement." A less tactful but perhaps more accurate description would be that the site has allowed a good percentage of America's tenured law professors to indulge in an outburst of hysterical rhetoric, political bad faith and general cluelessness that is both funny and sad.
What's funny about all this is that, as several of the scholars at the conference noted, there was nothing extraordinary about either the reasoning or the result of Bush v. Gore. Although those scholars probably wouldn't put it quite this way, the majority opinion in that case featured healthy doses of conclusory reasoning, tendentious logic and institutional arrogance. It was, in other words, a fairly ordinary exercise of the power of judicial review in America today.
If it were somehow possible to contaminate the roiling cauldron of pretentious sanctimony that is "673 Law Professors Say" with the merest droplet of intellectual honesty, its authors might recognize that the very thing they condemn about Bush v. Gore - the willingness of a federal court to impose its will on an intense political controversy with little better warrant than a belief in its own rectitude - is the same thing that the average law professor lauds to the skies whenever the court's predilections happen to coincide with the professor's.
That, after all, is one of the things we have come to mean by the phrase "the rule of law" in this country. Whether one is talking about liberal judges imposing their views on abortion and school prayer on everybody else, or conservative judges doing the same thing in regard to affirmative action and land use policy, the pattern is the same: Courts regularly step into fierce political contests and require that things be done as they see fit.
The richest irony in all this is that one reason - perhaps the chief reason - that modern federal courts have become so eager to throw their weight around is because of the preposterous claims law professors have been making for a couple of generations now about the supposed sagacity of judges. At law schools all over the nation, academic fans of the Warren Court developed the habit of treating the (politically enlightened) federal judge as a kind of prophetic dispenser of righteousness, unsullied by the crass world of political debate and compromise. It should come as no surprise that some of their students took these lessons to heart, and upon donning judicial robes have manifested a prophetic, if not downright messianic, self-image.
Dorf and Issacharoff were tactless enough to ask a potentially embarrassing question about the manifesto's signatories, who describe themselves as representing "different political beliefs." How many of these indignant scholars voted for George W. Bush? Crude statistical inference would suggest an answer of around 330, but the most cursory acquaintance with the legal academy would reduce this supposition by a factor of at least one hundred.
I hereby issue this challenge to my 673 colleagues: If three or more
of you will swear that you voted for W. last November, I'll eat this
column, with a side of fava beans and a nice
Paul Campos is a professor of law at the University of Colorado. Comment by clicking here.
02/21/01: There is a certain irony in all the foaming at the mouth Bubba's latest Excellent Adventure