Florida was a dress rehearsal for Sept. 11.

Ivy Change
In academia, Florida was a dress rehearsal for Sept. 11.

Mr. Kurtz is also a fellow at the Hudson Institute
October 29, 2001 8:25 a.m.



or the first time in a long time, the American academy and the Left-liberal professorate that commands it are in trouble. Before September 11, for all the complaints from outsiders about ideological bias, the status quo at our colleges and universities seemed secure. Not only did the radicals have tenure, but the Left looked poised to give itself an unbreakable lock on the professorate by replacing their last recalcitrant elders, soon to retire, with still more postmodernists.

Now, with the attacks of September 11 and the ensuing public outrage over the vituperative and one-sided "blame America first" response of the tenured radicals, the academy may finally be facing serious public questioning of its legitimacy — along with widespread dismissal of its relevance and credibility. So long as radical professors wrote in incomprehensible jargon and confined themselves to discussions of literature or popular culture, the public was content to ignore them, or to let out an occasional chuckle at their expense. But with a question of supreme national importance on the line, the public is watching the academy as never before, and shows every inclination to judge and find wanting what it sees there.

Without this war, the question of the academy might never have come to a head in a way that could seriously affect its present course. Yet only a year ago, we had a foreshadowing of what was to come in the dramatic national dust-up over the case of Bush v. Gore. We can see this now thanks to an important article, just published in The Wilson Quarterly by George Mason University Law Professor, Peter Berkowitz, and Benjamin Wittes, a member of the Washington Post's editorial staff. The article is called "The Professors and Bush v. Gore," and its theme is the deeply partisan and surprisingly thoughtless response of America's legal professorate to the court case that helped decide our last presidential election. In retrospect, the academy's irresponsible trashing of Bush v. Gore looks like a dress rehearsal for its response to the war against terrorism.

Berkowitz and Wittes do not attempt to argue that Bush v. Gore was rightly decided. Instead they call for an honest debate about what is in fact a very tough case. For all the ink spilled over this controversial decision, the remarkable fact is that genuine consideration of Bush v. Gore has barely begun. As Berkowitz and Wittes convincingly show, the legal academy has never really come to grips with the core arguments of Bush v. Gore, but instead has simply condemned, it, in nearly one voice, as an outrageous, hypocritical, illegitimate, and politically motivated, decision. Alan Dershowitz, in his recent book, Supreme Injustice, designated Bush v. Gore "the single most corrupt decision in Supreme Court history." (In two pieces for NRO, Berkowitz dismantles the attacks on Bush v. Gore put forward by both Alan Dershowitz and prosecutor Vincent Bugliosi.) Dershowitz's judgment was echoed by American University law professor Jamin Raskin, who opened an article in The Washington Monthly by calling Bush v. Gore "quite demonstrably the worst Supreme Court decision in history," and who went on to compare the case unfavorably with the notorious Dred Scott decision. Berkowitz and Wittes make it clear that these hyperbolic claims, and others like them, are baseless.

By carefully analyzing critiques of Bush v. Gore from three of the country's most eminent legal theorists — Cass Sunstein, Ronald Dworkin, and Bruce Ackerman — Berkowitz and Wittes show that even the most distinguished critics of Bush v. Gore offer virtually nothing in the way of evidence or argument that might justify their bitter condemnations of our nation's highest Court. On the contrary, Berkowitz and Wittes show that the critics of Bush v. Gore rely on mere assertion, misstate critical matters of fact, and fail even to accurately restate or come to grips with the actual legal reasoning of the Court's decision. In view of all this, Berkowitz and Wittes turn the accusations of irresponsibility and partisanship back upon the professors. It is the legal academy's own legitimacy — their reputation for thoughtfulness and integrity — not the Court's, that should suffer when the public finally comes to understand how thoroughly ungrounded last year's criticisms of Bush v. Gore really were.

New York University law Professor Ronald Dworkin, for example, perhaps the most respected liberal legal theorist in the country, although charging the high Court with staining its own reputation through an act of rank partisanship, neither accurately states nor fairly engages with the central arguments of the decision in Bush v. Gore. In that decision, the Court points to four distinct features of the manual recount ordered by the Florida supreme court which, taken together, violated the fundamental right to vote safeguarded by the equal protection clause of the 14th amendment. Yet Professor Dworkin condemns Bush v. Gore without even mentioning, let alone analyzing, three of the four equal-protection problems at the center of the decision.

Dworkin then goes on to castigate the Court for "violating the most basic principles of constitutional law," by imposing its own interpretation of Florida law on the Florida supreme court. Yet, as Berkowitz and Wittes point out, Dworkin ignores a critical passage in Bush v. Gore in which the Court bases itself on the Florida supreme court's interpretation of Florida law, an interpretation that Dworkin barely acknowledges, and certainly fails to analyze.

And the problems get worse. Only a couple of weeks after the decision was handed down, University of Chicago law professor Cass Sunstein, arguably the most politically influential legal scholar in the country, declared that the Court had "discredited itself" with its "illegitimate, unprincipled, and undemocratic decision." Yet at the time, Sunstein presented no arguments in support of his opinion. Nor have Sunstein's subsequent writings come close to justifying his early inflammatory remarks, which at the time helped to incite the outrage of Gore supporters throughout the country, and which were clearly meant to impeach the reputation of the Court itself.

But the most surprising section of the Berkowitz-Wittes article may be their examination of the charge of hypocritical abandonment of their judicial philosophy, an accusation leveled at the conservative majority in Bush v. Gore by nearly every critic of the case — which is to say, by nearly the entire legal academy. Supposedly, by reversing state supreme-court holdings on the grounds that they violate federal constitutional imperatives, the Court's conservatives were betraying their own federalist principles. Yet, as Berkowitz and Wittes point out, none of the scholars who leveled this charge of hypocrisy bothered to offer an actual analysis of the conservative justices' position on federalism.

Offering just such an analysis, Berkowitz and Wittes show that, in a variety of important cases, members of the majority in Bush v. Gore have voted to overturn state-court rulings on federal constitutional grounds. Only six months before Bush v. Gore, for example, the Court's conservatives overturned a New Jersey state supreme-court decision that the Boy Scouts could not discriminate on the basis of sexual orientation, on the grounds that the law, so interpreted, violated the Boy Scouts' First Amendment rights of expressive association. While the precedents cited by Berkowitz and Wittes may not definitively turn aside the federalism-hypocrisy argument, they certainly place the burden on the high Court's critics to support their daring charges with more than mere assertion.

In the end, Berkowitz and Wittes give us the picture of a legal professorate that has abandoned scholarly responsibility in favor of partisanship, to the point of attacking, without justification, the legitimacy of one of the country's most critical institutions. In doing so, Berkowitz and Wittes turn the questions of bias and legitimacy back upon the professors themselves.

But how are we to account for so thoroughgoing a failure on the part of the legal academy to meet its most basic responsibilities of fair argumentation? The answer is not far to seek. Like anyone else, law professors are fallible human beings. Even the most responsible and respected scholars find it difficult to remain honest and fair when their political interests are at stake. Our federal system solves this problem by setting diverse powers and interests astride one another, each to keep watch on the excesses of its counterpart. But with the effective takeover of the academy by the left side of the political spectrum, the system of intellectual checks and balances in the world of scholarship is no more. If our liberal law professors haven't bothered to offer minimally sound arguments in justification of their partisan assaults on our highest Court, surely it is because that academy has been denuded of the conservative professors who could call them to account for their excesses and force them to provide evidence for their arguments.

I remember how shocked I was just a few days after last November's election when ABC's Nightline featured a segment on the Florida election controversy with both Cass Sunstein and Pam Karlan, two law professors who later became famous for their energetic opposition to Bush v. Gore. I was appalled that ABC had allowed this bitterly contested election dispute to be adjudicated on air by two Democratic partisans, however much they tried to portray themselves as neutral experts. After all, Sunstein himself had published a cover article in the pre-election issue of The American Prospect that endorsed Al Gore. Yet here were two Democratic partisans on Nightline, being treated as though they were giving neutral accounts of what may have been the most politically charged legal controversy in American history, without a conservative legal scholar in sight. Less than a month later, Sunstein was denying that his signing of a now infamous pro-Gore ad in the New York Times (along with Rosie O'Donnell, Bianca Jagger, and friends) was a partisan act. And since the election, Sunstein has advised Democratic Senators on how to go about blocking judicial appointments by President Bush. Yet somehow Sunstein has managed to maintain a media reputation for non-partisanship.

None of that would be possible if there were enough conservative legal scholars in the academy to call people like Sunstein on their biases and expose their mistakes. And of course, our liberal professors would undoubtedly return the favor for their conservative colleagues. There is nothing original in a call for two-sided intellectual debate. Yet, however fundamental the point, we have forgotten it. By publishing their article, Berkowitz and Wittes have done nothing more, or less, than to illustrate the functioning of what John Stuart Mill believed to be the ideal of debate in a liberal society. A stronger argument exposes the flaws in a weak one, leading to newer, deeper, more productive debate. But why has it taken a year for us to get to this point — long after the post-election bitterness has been sown?

And now with this war, it's happening all over again. No sooner had the World Trade Center hit the ground than the recriminations against U.S. foreign policy by the academic Left began. In the confusion, few of the protesting professors bothered to notice that the demands of the terrorists went far beyond objections to U.S. policy on Israeli settlements, or our sanctions against Iraq. Nothing short of U.S. exit from the Middle East, the destruction of Israel, and the replacement of secular Arab governments by fundamentalist theocracies would appease them. And for all the attention to "root causes," among the Left, any consideration of the contribution of Islamic culture to the problems of Middle Eastern modernization was banned. Nor were the token number of hawks left in the academy sufficient to force consideration of these issues into the debate. (For a discussion of these issues, see my "Getting to the Root.")

But for all that, the tide is turning. True, there exists today no conservative professorate adequate to expose the foibles and biases of the academic Left. Yet with its one-sided and tendentious response to the September 11 attacks, the academy is exposing and discrediting itself in the eyes of the American people. That may or may not be enough to overcome the realities of tenure and the demographics of the professorate, but for the first time in a long time, there is at least the hope that the country will come to understand how profoundly our most precious institutions — and even the elemental security of our nation — depend upon the restoration of minimal intellectual and political balance to the academy.