More on Scholars’ Letter

December 28th, 2016

Yesterday, I wrote a post critical of scholars’ letters. Law professors should hesitate before signing open letters they had no role in drafting, and for which they lack any special legal expertise. To paraphrase Richard Fallon’s views on “scholars’ briefs,” “many professors compromise their integrity by joining such [letters] too promiscuously.

Today, John McGinnis offers a similar position concerning the letter opposing Senator Session’s nomination as Attorney General:

Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.

What is notable, however, is the lack of any scholarly argument in the letter.  There is no analysis of why Sessions’ positions are wrong as matter of law or policy.  I doubt many of the signers have examined the hearings for his district court nomination to come to independent judgment on his fitness for that office or any other.

Law professors have been writing such letters of mass advice to Congress for some time. They are almost always letters supporting the left-liberal positions, because law professors are overwhelming left liberal. Neal Devins of William and Mary has made a powerful case that these letters are a serious mistake, because they attempt to trade on law professors’ status as scholars to give credibility to unscholarly and sometimes partisan advice.  Professor Devins has noted that many law professors who sign these letters lack scholarly expertise in the subject matter, and this letter is no different in that respect.  But even the letters he critiqued, like that contending that President Clinton’s impeachment was unconstitutional, had least had the patina of an argument. But this letter just takes positions without serious reasoning of the kind scholars provide.

As such, this letter debases the enterprise of scholarship. What we as scholars can provide to politicians is more articulate reasons for political action.  That deepening of deliberation does a service to democratic debate, which at its best is about reason, not raw preferences. Particularly in these days where politics is less and less about policy and more about loyalties to one’s tribe, scholars have a particular obligation to raise politics toward the ideal of reason rather than to lower scholarly discourse toward that of coarse politics.

Professor Devin’s article is also worth quoting from. Here is the introduction:

Academic freedom may prove to be one of the casualties of the Clinton impeachment.1 By signing letters about the constitutional standards governing impeachment, an issue most of them know very little about, many academics placed partisanship and self-interest above all else. The logic of academic freedom, however, cannot be squared with academics who see celebrity and power as more important than the pursuit of truth. Grounded in the belief that academics searching for knowledge in free universities will strengthen a free society, academic freedom insulates the academy from political attack.2 It also gives credibility to the writings, testimony, court filings, talk show appearances, and other activities of academics who seek to influence public policy. At the least, academic freedom conveys the message that scholars who speak out on public issues know something about those issues. When academics join forces to send a purely political message, their reputation as truth-seekers will diminish and, with it, their credibility. While that day has not yet arrived, it is rapidly approaching. Accusations of political correctness run amok and goofiness3 are becoming increasingly mainstream.4 Unless academics *166 can answer these charges, they risk becoming irrelevant. Consequently, when a significant number of law professors and historians hold themselves out as experts when they are not, they mislead, and all academics pay a price. For this very reason, academics can ill afford another nail to be placed in the coffin of the dispassionate academic expert. Rather, they must hold politically motivated professors accountable for abusing academic freedom.

This section in a nut-shell encapsulates my views on scholars’ letters:

Why treat these letters with more deference than, say, a petition from the ACLU or the NRA? The answer, of course, is that academics have a reputation for placing the search for truth ahead of partisanship. Unlike movie stars, interest groups, or the person on the street, the credibility of academics is tied to their purported willingness to speak “[t]ruth to [p]ower.”

Society, acting on this vision, accords academics certain privileges that it accords no one else (except perhaps judges). Society, acting on this vision, accords academics certain privileges that it accords no one else (except perhaps judges).15 Academic freedom, tenure, sabbaticals, and the like encourage academics to think independently and to challenge prevailing norms through their scholarship.16 At the same time, the trust that society has placed in academics, as well as the resources it has provided them, are grounded in certain assumptions about academic conduct. Academics, for example, have an obligation “to speak truthfully about the issue at hand, because they have a detached cast of mind as well as a large stock of relevant and reliable knowledge on the subject at issue.”17 

For this very reason, policy *169 makers and media outlets seek out academics on many of the issues that divide the nation. Academic letter-writing campaigns likewise capitalize on the academic’s reputation for dispassionate expertise. Consider, for example, the anti-impeachment letters. Writing “neither as Democrats nor as Republicans” (but as “professors of law”), these citizen scholars saw the drive to impeach the President as a threat to “our constitutional order.”20 Signed by many of the nation’s most prominent law professors and historians, it is no wonder that these letters were taken seriously by the President’s supporters as well as his foes. Upon closer inspection, however, these letter-writing campaigns are little more than a testament to the willingness of many academics to pawn off fake knowledge.
Read the entire article.

Providing the counter-point to Devins was Cass Sunstein:

In any case, Devins does not discuss what academic freedom is for, to wit, the power to speak controversially about the *195 truth as one sees it, free of risks of political reprisal. I agree with Devins that the principle of academic freedom is violated if those who enjoy it are not acting in good faith or are not pursuing truth (not a doubtful empirical claim about consequences but a sensible claim about principle, which is what appears to me to underlie Devins’s essay). But nothing in this point argues against public statements by professors. …

His first point has to do with the possibly limited expertise of many or some of those who signed the relevant letters. Devins says that “it is doubtful that many had thought seriously about the constitutional standards governing impeachment.”12 He appears to believe that at least by implication, some or many law professors held themselves out as specialists or experts when, in fact, they lacked knowledge about impeachment that would qualify them as such.
For some of the signatories, perhaps this is true. But I think that Devins’s judgment is too harsh. Impeachment is hardly an obscure or invisible issue in constitutional law, and in the wake of the Watergate controversy, many law professors developed genuine, if fairly general, views on the appropriate meaning of the phrase “high crimes or misdemeanors.” Certainly most teachers of constitutional law know something about the governing legal standards; they know enough to know, for example, that smoking marijuana or speeding would not ordinarily count as a “high crime or misdemeanor.” From there they could reason by analogy to the view that, at least as a general rule, a President cannot be impeached unless he has been charged with large-scale abuse of the powers that he has by virtue of being President.

Those law professors who signed the longer letter but who do not teach constitutional law probably believed that they knew enough–from training and from substantive conversations with colleagues–to have a reasonably informed opinion about the threshold question of whether the charges against President Clinton made out an impeachable offense. Law professors who do not teach constitutional law have informed views about many constitutional issues–for example, about whether racial segregation is generally unconstitutional, whether quotas can make for an acceptable affirmative action program, and *196 whether the Constitution protects the right to use contraceptives. Many law professors believe that with respect to the charges against President Clinton, impeachment falls in the same category.13 The signatories likely thought, in good faith, that they knew enough about the constitutional provision to conclude that an impeachable offense had not been made out. It is hard to see why there is anything untoward here. I agree with Devins that people should not sign petitions when they are unable to defend the relevant position publicly; but I would give the signatories the benefit of the doubt on this point.

With respect to the charge of hypocrisy, Sunstein writes that the professors would likely hold the same views for an impeachment trial for a Republican President.

But I do not know how Devins can be confident of this uncharitable judgment, and in any case, the anti-impeachment conclusion would hold if President Reagan, or a future Republican President, were subject to an impeachment inquiry on the basis of similar allegations.19 I very much doubt that the signatories would change their view if the accused President had been Republican. Perhaps Devins disagrees, but he offers little basis for any such disagreement.

LOL. If you believe that, I have some ocean-front property in Idaho to sell you–right next to the new Trump International Hotel, which will violate the emoluments clause.