Likelihood of Success

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The silence deafens

Posted by Ron Coleman on October 23, 2008

A long time ago I identified Erwin Chemerinsky as a pretty contemptible guy, a left-wing extremist in the groves of legal academia who gets away with all sorts of things because of the way the game is played in that high-end segment of the business:

In April 2005, he was named by Legal Affairs as one of “the top 20 legal thinkers in America.”

Never right means never wrong

Never right means never wrong

Named by the Daily Journal every year from 1998-2003 as one of the 100 most influential lawyers in California. Awards include the 2003 President’s Award from the Criminal Courts Bar Association; 2003 Freedom of Information Award form the Society for Professional Journalists; 2002 Community Service Award from the Western Center on Law and Poverty; 2001 Community Service Award from the Anti-Defamation League; 2001 Clarence Darrow Award from the People’s College of Law; 2000 Alumni Achievement Award from Northwestern University; the 1999 Eason Monroe Courageous Advocate Award from the American Civil Liberties Union of Southern California; and the 1998 Judge John Brown Award for Contributions to Federal Judicial Education. Also received awards for work on the Los Angeles City Charter from the American Society of Public Administration, the Los Angeles Chamber of Commerce, and the Los Angeles Urban League.

Wow!  But as I pointed out in my earlier post, Chemerinsky goes beyond the Larry Tribes and Alan Dershowitzes of the world to a never-never land where the political end comes far ahead of intellectual honesty.  Walter Olson has a post that confirms the point:

Dean Erwin Chemerinsky of the newly founded UC Irvine school of (ideologically charged) law seems to fancy himself the conscience of legal academia. But it’s looking very much as if he — along with some bloggers and legal publications who should know better — owe an abject apology to Chief Judge Dennis Jacobs of the Second Circuit U.S. Court of Appeals.

The affair began when the New York Daily Record, a Rochester, N.Y. legal publication, reported on a speech Judge Jacobs gave to a Federalist Society gathering in that upstate city. As soon summarized on several blogs and publications, Judge Jacobs supposedly dismissed pro bono work by lawyers — all of it, in its enormous variety from high to low, humble to headline-driving, plain-vanilla to goofily cutting-edge — as at least “primarily”, if not entirely, driven by “anti-social” and self-seeking impulses. As criticism mushroomed, it was pointed out that Judge Jacobs had himself been quite involved with efforts to promote pro bono work among lawyers. Rather than cause the writers to question whether the Rochester report accurately summarized Jacobs’ views, this circumstance was seized on as evidence that the judge was being hypocritical, or inconsistent, or something else bad.

Like, I suspect, a great many other readers, I knew from the very first reports that there was something very “off” about the story as it was being retailed. . . . In short, I clicked past the story figuring that a correction would soon be forthcoming, and more than a little surprised that those spreading it didn’t seem to regard the reporting as suspect.

But it was the reaction of Erwin Chemerinsky that will long be remembered. Without, it seems, waiting for any further clarification from Judge Jacobs of exactly what he had or hadn’t said, Chemerinsky mounted the highest horse available and rushed into the pages of the National Law Journal with a piece unsubtly titled “Shame on Dennis Jacobs“. Jacobs “should be ashamed of himself,” the speech was “a slap in the face”, “I hope that he is widely denounced for his misguided views”, and so forth. All of which happened to rest, readers may have noticed, on a wobbly little phrase in Chemerinsky’s second sentence, namely namely “it was reported that“.

Can you hear the “oops” coming?

Only in my mind’s ear, despite this revelation from Walter:

When the WSJ law blog turned to the story yesterday, it too at first seemed to take it at face value. But later in the day, it added the following:

UPDATE: Through a spokesman, Judge Jacobs conveyed the following message to the Law Blog: “Dean Chemerinsky’s article was evidently based on a newspaper article of my talk that grossly misstates what I said and think. Neither the National Law Journal nor Dean Chemerinsky have contacted me. I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses.”

Has Chemerinsky got it in him to acknowledge his egregiously unprofessional error?  Or is mere truthiness going to be enough for him to sleep at night?  I have a pretty good idea which.  But if I’m mistaken, I’ll be sure to let you know — right here!

UPDATE:  Walter now links, via the Federalist Society, to the speech itself here.

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2 Responses to “The silence deafens”

  1. m said

    Here’s the good dean’s response: http://blogs.wsj.com/law/2008/10/24/chemerinsky-stands-by-op-ed-calls-for-throw-down-with-jacobs/

  2. Jonathan said

    Chemerinsky’s response as quoted by the WSJ blog reminds me of the arguments of blog commenters who misunderstand what I write, and then when I try to explain it insist that they understand it and I don’t.

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