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« Women and Prairie Voles | Main | The War of the Bibliophiles »

December 01, 2006


Delahunty's case goes a little beyond the simple questions of academic freedom, censorship or ideology. He has actually participated in an unconstitutional act, in my opinion, not just held a view sympathetic to it.

It is a bit ironic that conservatives would be crying foul and censorship in Delahunty's case. Didn't Professor Juan Cole recently fail to get an appointment at Yale for what is widely suspected to be his views on the middle east?

So, the right wing lawyers are arguing about competence, knowledge of the the law etc. Comparisons to the Nazi era are always odious. But I will make one anyway. The Nazis, if not anything else, had a slew of competent men in their cadre who were probably quite capable in their respective trades. Drawing an analogy with that vicious regime, would Mengele have been given a job at a university med school or Goebbels in the dept. of communications, for their competency in their respective fields? I know the analogy is heavily exaggerated and way over the top. But I am drawing a distinction between merely espousing a philosophy and helping to realize it in practical ways. Delahunty, from all I have now read about him, seems to fall in the latter category.

Granted, Delahunty is not as well known as John Yoo, who was all over C-Span and other TV channnels and wrote copiously during his glory days. It is still amazing that the folks in your law school, responsible for the hiring, didn't know about him. They don't google, I suppose. Or more likely, Delahunty has a powerful patron within the law faculty whose words were deemed above reproach and therefore, no cross checking was done.

"Merely produced incompetent legal anaylsis which was repudiated by the Supreme Court"?

The degree to which the students and faculty at U of M are willing to go to preserve their comfortable little liberal echo chamber continues to amaze.

One aspect of Delahunty's argument was rejected by a 5-3 majority. Clearly you would object to the Co-Deans offering a temporary teaching position to any of the 3 justices who dissented? Similarly, the Chief Justice, who was part of the D.C. Circuit panel that adopted the Delahunt view is obviously not qualified to teach constitutional law at our beloved institution.

Lawrence Tribe has repeatedly articulated positions that were rejected by the Supreme Court. Would you suggest that Harvard let him go? I'm betting I know the answer to that question.

Concerned Alum:

1. I don't know enough about Mr. Tribe to answer that question. It depends.
2. It's worth noting that the Court is not bound by precedent, so it's entirely reasonable for any Justice to vote to change the law (and for an advocate attorney, or a law professor, to argue for such a change), but it's another thing entirely for an OLC attorney to do so when analyzing what the law is.
3. It's entirely possible to reach a correct conclusion through poor reasoning. (Would it be reasonable to expect this 50% of the time in the case of bad reasoning?)
4. The Steel Seizure Case provides the dominant framework for determining the extent of Executive authority, specifically Justice Jackson's concurrence. Where was the Youngstown analysis? That omission alone could be considered... well, it's not the type of thing ordinarily left out of competent responses to these kinds of questions (unless those responses are made in bad faith).

Like Ruchira, I find it hard to believe the law school didn't know whom they were hiring. Otherwise, I think this dispute on AB wants perspective. Had Concerned Alum put his or her point with a bit less sarcasm, I might be inclined to agree more freely with her or him. The point, I think, is that we're talking about pedagogy here...not policy, legal ethics, or intimations of constitutional violations. Perhaps this is all confused by the fact that the adjunct will teach Con Law. But the discomfort Joe and other students feel isn't enough. If their convictions are being tested, then we arguably have another issue, but sometimes abiding by one's convictions entails sacrifice.

Last year when John Yoo's Con Law class was interrupted by protesters here at Boalt Hall, I overheard a few of his students afterwards apologizing to him. It struck me then that it was likely that not all of these students would have been ideologically squared with him--this is Berkeley, after all--and yet that they may have been genuinely upset with the interruption of their class. They had an exam for which they were preparing, of course, but perhaps they also respected the relatively controlled environment of the classroom--despite their sympathies with the protesters--and maybe they found Prof. Yoo's teaching instructive. The scenarios aren't identical, but this one appears to confirm Joe's expectations for Minnesota.

True enough Mr. Rowan - the sarcasm really doesn't add much - it is the unfortunate byproduct of a week's worth of frustration, attributable primarily to two sources.

The first is the apparent inability of two very able professors to serve effectively as interim co-deans. To be unaware of the memo suggests a failure of process (Google anyone?). To say so after the offer was extended is to implicitly suggest (or at least permit others to believe) that the offer would not have been extended if they had been so aware. To have so little respect from the faculty that their objections get expressed in an open letter to the entire school rather than directly to the deans is a failure of leadership. Finally, to indulge the students (many of whom have not yet had a single course on constitutional law) in their belief that they can (or should) pressure the administration to "unhire" a professor who is clearly qualified because he is idealogically "dissatisfying" is a failure of management.

The second source of frustration is the willingness of several students, including Joe, to openly claim that Delahunty is not qualified to teach con law at Minnesota. This position is so absurd as to be (almost, if not so depressing) funny. I tried to make this point previously, but, as was evidenced by the "Youngstown comeback", I have failed miserably. The temptation is to respond by articulating some of the many reasons why I suspect the Youngstown analysis wasn't included in the memo. Fortunately, for myself (and my employer for whom I presently have much work to do), I've not taken that bait. To begin with, those reasons are many and complex, and are not particularly susceptible to the "blog-friendly" heavy hyperbole summary style favored here. Had I taken the time to express my thoughts as to why the 80+ page Supreme Court opinions in Hamdan mentioned Youngstown only 3 times (with very little analysis in each case), I would have been all the more frustrated by my ultimate failure to convince Joe. I now understand that he, and the others like him at the U of M law school, have conclusively determined that Delahunty, a product of Harvard and Oxford, who apparently knows enough constitutional law to have been a high-level adviser to 3 presidents from both parties, is not qualified to teach first year law students at Minnesota about procedural due process and the commerce clause.

Boalt is a beacon. The presence of brilliant minds from all points of the idealogical spectrum is a tremendous asset. While I am not fortunate enough to be able to say this from first hand experience, I suspect that students and faculty benefit greatly from the opportunity to sharpen their arguments by dissecting the very best the idealogical opposition has to offer and by using that valuable raw material to construct effective rebuttals and improve and advance their own understanding of a given topic.

Minnesota has been, and continues to be, an echo chamber. Until the faculty and the students are willing to embrace ideological diversity, their academic growth will continue to be severly stunted by an unhealthy tendency toward group think. Have you read the faculty letter? Singularly uninspiring. While I regularly disagree with Michael Paulsen's politics, and while I freely admit that his comments to the Minnesota Daily were (much like my previous sarcasm) at best immature, I can guarantee that his response, if he were to write one, would be a tour de force, sprinkled with the witty irreverence and weighty arguments he has constructed out of material provided by the numerous idealogical "foes" to whom he pays such close attention.

No one benefits from an echo chamber. After a while, it's nothing but noise.

Dean and Concerned:
I understand fully what you guys are saying. I am sure Delahunty is perfectly adequate, may be even brilliant as a teacher. The point really was not his capability. The students and faculty are objecting to what they see as a specific act by Delahunty on behalf of the Bush administration. And as such, they are objecting more to him as a person who either willingly compromised established legal principles or ignored them due to sloppy lawyering. Whether he CAN teach first year Con Law is perhaps not so important as whether he SHOULD. I will not bring up any further odious comparisons but I think you get the point.

To Joe's credit, he does say the following in his post:

For now we're kind of stuck. Many students and some faculty have publicly distanced themselves from Mr. Delahunty's views and past work products. They also do not wish for him to join this institution, however temporarily, but Delahunty will very probably be here next semester teaching us. I expect the semester to go smoothly: students will study, teachers will teach, and nearly all of us are capable of being mature and professional individuals. In the interim (and admittedly, much to his credit), Delahunty will speak with his future students and attempt to address any concerns they might have.

So, students are NOT going to disrupt the classes, it seems. They don't have to either agree with or admire Delahunty to benefit from his pedagogy. The current dissent may indeed be a manifestation of the independent mind that Concerned would like the students to develop. What exactly is wrong with this protest prior to Delahunty actually starting to teach?

And Concerned:

Please be assured there is no particular style of conversation "favored" here. (Except, we don't like vicious incivility and obscenity filled diatribes.) We deal with hyperbolic speech just as well as we do with reasoned arguments. If you are referring to my own comment, I grant you that it was hyperbolic but I cautioned the readers right away. More important, the reason you will lose me in particular with legalese is that I have little understanding of the law in its academic details. The gist of this controversy though is not a legal one, rather it is political. Whether someone's actions (not thoughts) on behalf of a particular political philosophy is enough to protest his/her hiring at a particular institution. If you are going to convince me that Delahunty's actions on behalf of the OLC were not objectionable, that is another story. Some of the students and faculty clearly seem to think that they were. Can we be entirely objective about a person's politics or actions in favor of his/her capabilities? Would we tolerate public avowals of racism? Are there moral turpitude clauses in academic hirings? I don't believe that this is entirely a case of the tyranny of the masses.

Please visit Accidental Blogger when you have time in your busy schedule. You might even enjoy some of our discussions on other topics.

Dean writes, "The point, I think, is that we're talking about pedagogy here...not policy, legal ethics, or intimations of constitutional violations."

I don't see why that's the case, Dean. As Ruchira puts it, "The students and faculty are objecting to what they see as a specific act by Delahunty on behalf of the Bush administration. And as such, they are objecting more to him as a person who either willingly compromised established legal principles or ignored them due to sloppy lawyering."

As I understand it, a controlling principle of Nuremberg was that even correct legal technicalities, when predictably leading to the death or torture of human beings are not to be tolerated because there are fundamental human rights which are not to be violated. Scott Horton. I think this is sufficient to oppose bringing in Delahunty even if his legal argument was technically sound.

That said, Concerned Alum, at Volokh, Orin Kerr comments: "The legal analysis in the torture memos is so bad that you really do have to wonder about what its authors were thinking."

Derek Jinks (Texas) and David Sloss (St. Louis), in the Cornell Law Review: "the Yoo/Delahunty Memo is riddled with inexplicable gaps in its analysis."

Cass Sunstein (UChicago) on the torture memos: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless."

Jack Balkin (Yale, and who we love here at A.B.): "You just don't begin a discussion of presidential power without mentioning Youngstown."

See 6/25/04 NYT A14 for more of the same.

My point being, yeah, okay, maybe I'm just a law student and don't know the law as well as some people... but the U of M professors I know who signed the open letter I have a tremendous amount of respect for (e.g., Laura Cooper--some I'm simply not familiar with); other law professors who have sharply criticized the Yoo-Delahunty memo as well as the other memos, again, I have a lot of pre-existing respect for... maybe the nicest thing I can find any reputable scholar to say about it is Co-Deans Charles and Morrison who mildly noted that they disagreed with his legal conclusions. Other than John Yoo patting himself on the back, I've got (a) my own reading which is that Delahunty and Yoo were trying to reach a certain outcome; (b) the scholarly community, so far as I can tell, rejecting the memo in either mild or extremely strong terms; and (c) some people saying they disagree with the faculty open letter and student petition to reconsider hiring Delahunty because it's an issue of academic freedom and the liberals are crazy (not necessarily supporting the content).

What am I to make of those three things? That it was a very bad memo, probably penned in bad faith. To the extent that you suggest he's obviously competent enough to teach substantive due process to a bunch of 1Ls next semester, I don't disagree with you, and think you've misunderstood: to the extent that I reference the "incompetence" of the memo, I agree, his resume indicates intelligence, skill, and competence, and think this en toto points to bad faith on the part of the author, i.e. an attempt to reach a certain legal conclusion rather than honest analysis.

I should add, you're right to note the importance of the Co-Deans acknowledging that they didn't know about this when they hired him. They came extremely close to saying (without quite saying it) that they would not have hired him had they associated him with this memo. Rightly or wrongly, for me that operates to affirm my belief that there is reasonable ground for opposing Delahunty's hiring.

"It's worth noting that the Court is not bound by precedent, so it's entirely reasonable for any Justice to vote to change the law.."

Lord, Joe, is that what coming of age under the activist Rehnquist Court has led you to believe? Get thee to Con Law!

I'm with Dean and Concerned Alum on this one. Ruchira's characterization of Delahunty's role in writing the torture memo as "actions (not thoughts) on behalf of a particular political philosophy" does not persuade me. If publicly offering thoughts in the form of written words is "action," I can't imagine what constitutes pure "speech."

I also don't see a coherent way to separate one's right to hold an opinion from the right to hold a job for which one is otherwise competent. Or at least, using a sympathetic analogy (an underappreciated tool), I don't see a coherent way to argue that the McCarthy blacklists that forced many people close to my family out of teaching positions in the 1950s were wrong, but that forcing someone out of teaching for his politics now is correct. For what it's worth, the professors in the 1950s who I have in mind had taken "action," too: joined the Communist Party, organized, distributed leaflets. Is the distinction that they were not in positions of power? Would it have become wrong for them to teach had they been more successful (i.e. in a Communist state)?

I don't think much is gained by refusal to engage as a form of protest. Would our expression of disapproval extend to written material? In the context of racism, some of the most valuable insight into America's sorid cultural baggage I ever gained in college was through reading John C. Calhoun, odious as he was. I tend to dislike "reductio ad Nazi" arguments (and the reductive position of Nazism in historical narrative, for that matter), though I get Ruchira's point. Still, if the time machine technology were available, I wouldn't hesitate to support my university's choice to hire Heidegger as a philosophy professor, or Wagner as a professor of music.

I'm sorry to hear that Juan Cole was denied a position at YLS, my alma mater, if the reason was his political views on the Middle East (this seems surprising, given that James Silk, on the Clinical faculty, and Dean Harold Koh, among others, are both strong supporters of Palestinian rights and hardly Mid-East hawks, but who knows). It's hard to know why faculty hiring committees make the decisions they do: the internal politics of academic departments would make Machiavelli blush. For that reason, I tend to take the support of the legal academy against Delahunty with a grain of salt.

Juan Cole was denied a position in the history department at Yale, not YLS. As Brian Leiter pointed out that given the "Byzantine hiring process" at Yale, it is hard to pinpoint the precise cause. But that he had been offered the position by the department and the pressure came from "higher up" make people suspicious that the decision was political.

Anna, I understand what you say about hiring those with whom you don't agree. But there can be different levels of disagreement - beyond the garden variety liberal - conservative divide. Delahunty's speech / action here is only relevant that it enabled the Bush administration to take certain measures vis-a-vis our war policies which subsequently have been deemed unconstitutional. Even if you insist that his was only a passive role, it was at least comparable to the cherry picked, faulty intelligence that the CIA fed Bush-Cheney in order that they could justify a criminal aggression against a sovereign nation. So by that yardstick, his speech/ actions had far greater impact on our national and foreign policy than the ineffectual 1950s intellectuals who were communist sympathizers. BTW, is it possible for a self avowed practising communist to get hired by institutions within American academia of repute, even in this day and age?

No one should be denied a job because of their philosophy or politics until or unless they have been found guilty of a crime. Yet, it happens all the time for much flimsier reasons - overtly in private institutions and tacitly at public ones. Both students and faculty have a pretty good idea of the prevailing culture of the institution they choose to join. I cannot understand why this protest is being considered so heinous by many - theirs too is a case of free speech. The hiring committee doesn't have to listen to the protesters. And as Joe, pointed out, once Delahunty actually starts teaching, life will go on as usual at U of MN. As for Delahunty being denied a job, U of MN is not the only place to find a law job, is it? He can find a job elsewhere where the students and faculty find nothing objectionable about his "torture memos". Pepperdine perhaps?

"Juan Cole was denied a position in the history department at Yale, not YLS." That makes more sense; the context of the post confused me. Cole's own response to Amy Goodman on the issue of the Yale appointment strikes me as eminently sane:

"Well, first of all, I never applied for a job at Yale. Some people at Yale asked if they could look at me for a senior appointment. I said, "Look all you want." So that's up to them. Senior professors are like baseball players. You’re being looked at by other teams all the time. If it doesn't result in an offer, then nobody takes it seriously. Some neo-con journalists have tried to make this a big scandal. Who knows what their hiring process is like, what things they were looking for? I think it's a tempest in a teapot."

I think the main charge a self-professed Communist would face in this day and age would be of antideluvianism. The current trend in reputable academia (in the "soft" humanities anyway), seems, unfortunately, to be a toothless Marxism that despises secular humanism as part of an oppressive capitalist system, but doesn't offer any alternatives (social science departments, heading in the opposite direction, map the conservative materialist trends of our times). But, I get your joke, and know that you know it means something different to have been a Communist before 1939 (Nazi-Soviet non-aggression treaty); in 1941 (at the time of the Rapp-Coudert Committee hearings that purged the CCNY system); in 1954 (post war, Army-McCarthy hearings). Not all Communist sympathizers were ineffectual (e.g. Julius Rosenberg) doesn't excuse the limitations imposed on academic freedom in those times.

Of course I agree with both you and Joe, Ruchira, that the students have a right to protest the choice. Demonstrations are Jim Dandy in my book: it's a good, healthy thing that students are engaged and drawing attention to the choices made by their school administration and to the nastyness of the torture memos. But our country's polarized enough without erecting anymore reinforcements to the barriers to cognitive dissonance that we've created. (Which may mean only: I don't want to send any more conservatives to Pepperdine, because I'm still holding out hope for a liberal takeover of their gorgeous, Malibu campus. It's a pretty sweet campus).

CA’s analysis of failed leadership seems at least plausible to me, and the “second source of frustration” exactly gets to the issue I tried to highlight. The question of Delahunty’s ability as a teacher and scholar is largely irrelevant here, and so the protestors really won’t advance their interests by focusing on it.

I’m not suggesting that it’s wrong to oppose or protest the appointment. That is a political issue whose parameters are defined in part by academic politics. Delahunty may very well be “a person who either willingly compromised established legal principles or ignored them due to sloppy lawyering." Frankly, I think this is too cautious an indictment. I suspect the academy, top to bottom, is riddled with compromise and sloppiness. Joe and Ruchira remind us, however, that the consequences in this case are not ordinary, but symptomatic of a kind of evil. To the extent that Delahunty is viewed as having participated in that evil, protest is not merely warranted but perhaps imperative. If so, the protest derails if it resorts to a dispute about credentials and qualifications. Even if the numerous criticisms based on a notorious memo co-authored in a highly charged historical context with little precedent were sufficient to justify an “unhiring,” they would operate as technicalities, convenient institutional reasons for disposing of an unseemly situation. Such an outcome would unfortunately miss the point.

Anna’s deliciously hybrid Latin-Teutonic “reductio ad Nazi” and her healthy equivocation about it are illustrative here, too. It’s easy to level a metaphysical predication of “evil” without having to show much for it. (See Godwin’s law.) On the other hand, to forego such a predication when it captures one’s considered and felt opinion in order to de-escalate the pitch of a controversy is cynical.

“Boalt is a beacon,” indeed, but I hasten to add that at least a couple of the remarkable faculty with whom I have enthusiastically worked as both a student and a librarian here are fairly recent arrivals from Minnesota. That fact could speak either way about CA’s observation about the Midwest school, I suppose.

That's precisely the joke, Anna. That even in these days of toothless communism, I think a communist still won't find a job because of the knee jerk "antedeluvian" mind set that you allude to. I haven't done a study on bearded, swarthy, five time praying, Muslim academics of incisive intellect and their hiring prospects.

I too would love to see amity and peace prevail in this country after six years of destructive divisiveness. I doubt that I am going to self flagellate for my own positions because of what I have endured coming from the Bush-Cheney-Rove-Limbaugh camp. After all, I lived throught the Reagan years without developing an ulcer or needing therapy. But the atmosphere under this administration has been unbelievably poisonous.

David Horowitz goes around campuses carrying a hit list of academics, sometimes aided and abetted by the Wall Street Journal which did a smear job on Juan Cole. My point here really was that somehow the liberals always get bashed with charges of undue activism and I am not saying that liberals can't be obnoxious. During the Iraq war, two leftist academics were targeted for their anti-American stance while what they were really protesting was the war, albeit in a rather crude way. One was Robert Jensen at UT and the other was Ward Churchill of Colorado. I didn't agree with the shrill tone of their criticism. But they were no more ugly than the anti-Islamic, "kill, kill, kill" jingoism emanating from the right. Jensen still teaches at UT but the last I heard of the affair, Churchill was set to lose his job at UC due to charges of "plagiarism" in his scholarly papers. I don't know the details of where that matter went. Therefore to say that politics does not affect academic appointments is just not true.

I agree that the Pepperdine campus is gorgeous. A liberal takeover will be very welcome.

I agree with your comment on Anna's food post that the Delahunty back and forth has left us a bit out of breath. The last time I wrote with so much attention in the comments section of A.B. was when you engaged me in the debate over art appreciation :-)

I want to thank everyone for a spirited discussion of an issue on which we all seem to have clear opinions. Thanks also to Joe for providing us with the eye witness account of the affair. Now Joe, it is time for you to hit the books for the upcoming finals.

Anna: point taken. Thanks to all of you for the continued commentary on the matter. I'm enjoying reading it--as always, I value your opinions and perspectives.

That's really all I have time to say.

Oh, also, Delahunty met with us today (the students only who will be in his section). A few observations:
1. It may be unfair of critics not to note that it was in fact a draft memo, not the final one sent out by the OLC. I'm not sure.
2. While not once invoking privilege, Delahunty was extremely evasive and dishonest in his answers. He did it well, though, in the sense that it seemed as if he was actually answering the questions.
3. I'm disappointed in our Co-Deans. It's now my opinion that they weren't/aren't interested in anything other than controlling perception and playing politics.

(Okay, starting NOW.)

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