September 12, 2007

THE WSJ LAW BLOG has more on the Chemerinsky story, including a confirmation from Chemerinsky.

And John Leo has some thoughts:

If the blog report is accurate, the treatment of Chemerinsky is a test case for conservatives who support free speech and argue vehemently against political tests for faculty and administration appointments. Do these principles apply only to conservatives, or do they protect liberals as well?

Chemerinsky is indeed very liberal and very outspoken. He particularly irritated many religious conservatives by lumping Christian fundamentalists with Islamic fundamentalists as threats to democratic principles. So argue with him, but don’t try to get him fired.

For one thing, the chancellor had plenty of time to think about the impact of hiring Chermerinsky, and to reject him if he chose. But it’s disgraceful to hire the man, fire him immediately and then explain that you are doing so to cave into political pressure. The chancellor, the school and Chemerinsky all suffer from this sort of amateurish behavior. And if the chancellor does not reverse course and accept Chemerinsky, he puts the next choice for dean in an untenable position – he will inevitably be seen as a safe nominee, so harmless that no political pressure group will try to oust him. The reputation of the law school would decline two years before opening.

Yes, it’s a terrible move for U.C. Irvine. And Leo’s right about the rest, too. I would certainly hope that left-leaning academics would support someone on the right who was treated similarly.

UPDATE: A good point from Eugene Volokh, who observes that we shouldn’t treat administrative appointments as raising the kind of free-speech concerns that scholarly appointments do. Fair enough. But nonetheless, while U.C. Irvine might have been fine to decide that they wanted a conservative dean to enhance the intellectual diversity of California’s public law schools, that’s the sort of decision that should have been made before the offer was made to Chemerinsky. And this is only one reason why the U.C. Irvine administrators look dumb. As Ilya Somin comments:

The Irvine decisionmakers were simply foolish to believe that Chemerinsky’s hiring would produce a major backlash from conservatives that could harm the school. Many prominent law schools have deans significantly more left-wing than Chemerinsky. None of them has attracted a significant conservative backlash for their dean hiring decision, and certainly none has suffered any real harm from such conservative criticism as did occur. Chemerinsky is unquestionably a liberal, but his views on legal issues are actually quite typical of the overwhelmingly left of center legal academy. I can easily name plenty of prominent constitutional law scholars significantly further to the left than Chemerinsky is. . . .

My own view is that political ideology should not influence the hiring of scholars, except in extraordinarily unusual instances. Administrators are a more complicated case, because they are responsible for overseeing policies with ideological implications and objectives, and because they are supposed to project a positive public image for the school. It may be reasonable to avoid hiring administrators whose ideological views are radically at odds with the policies they are expected to enforce or will seriously damage the school’s image. Be that as it may, there is no reason to believe that Chemerinsky’s political ideology would prevent him from discharging his duties as dean, or somehow damage Irvine’s image. Indeed, UC Irvine’s decision to rescind the offer is likely to do far more harm to the school’s reputation than hiring him ever could have.

That seems right to me.

Meanwhile, many readers think my statement above — “I would certainly hope that left-leaning academics would support someone on the right who was treated similarly” — is hopelessly naive. I would say, rather, hopefully naive. . . .

ANOTHER UPDATE: More, including a poll, here.

MORE: Hugh Hewitt weighs in.

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