Posted by David Bernstein:
Bush v. Gore and Conservative Law Professors:
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210222814
Andy Koppleman writes [1]over at Balkinization:
One of the more depressing results of the decision was the rush of
conservative law professors, many of whom are self-styled
originalists and advocates of restraint, to defend the decision.
One can easily imagine what they would have said had the Court
engaged in such contortions on behalf of Democrats. The dishonesty
or self-deception of the Bush v. Gore majority is perhaps
understandable: by reaching the result they did, they got something
tangible that they badly wanted, a Republican president. But what,
exactly, do scholars gain by mortifying their intellects in this
way? They are worse than political hacks. They are public relations
flacks for political hacks.
To which I respond, what on earth is Andy talking about? If
conservative law professors were rushing to endorse Bush v. Gore,
surely the Wall Street Journal's op-ed page would have found room to
publish their views. A check of the Journal's archives showed that no
such endorsement appeared. The Journal did, however, publish [2]a
critique of the opinion by then-Professor Michael McConnell, a piece
that is said to have cost McConnell the solicitor general's job, and
perhaps a supreme court appointment.
Meanwhile, I remember attending the Federalist Society's annual
faculty conference just a few weeks after the decision. Not
surprisingly, everyone was talking about Bush v. Gore, and to my
recollection, no one endorsed the majority opinion on its merits, and
quite a few attendees were openly hostile to the decision. Even
Richard Epstein (a libertarian, not a conservative, fwiw), who
defended the result in Bush v. Gore in 2001, described the majority
opinion as a "confused nonstarter at best, which deserves much of the
scorn that has been heaped upon it."
A few conservative legal scholars have defended the Supreme Court's
resolution of Bush v. Gore from academic critics. But these are
[3]careful, [4]scholarly [5]works and were published well after the
decision came out. No signs of rushes to judgment for political
reasons here.
By contrast, even though the Court's basic equal protection argument
received seven votes, I'm not sure that a single liberal law professor
(a much larger group than conservative law professors) has argued that
the Court was right, no matter how expansively such professors had
previously argued the equal protection should be interpreted.
Prominent liberal professors including Ronald Dworkin (NY Review of
Books, Jan. 11, 2001), Bruce Ackerman (American Prospect, Feb. 12,
2001), Alan Dershowitz (Oxford University Press 2001), Michael Klarman
(Calif. L. Rev. 2001), Jeffrey Rosen (New Republic, Dec. 25, 2000),
and Laurence Tribe (Harvard L. Rev. 2001) wrote critiques of Bush v.
Gore that appeared very quickly. And I also recall reading that one
prominent (though unidentified) liberal law professor had an op-ed
ready to be published the morning after the election arguing that the
electoral college, not the popular vote, should determine the next
president, only to pull the piece when it turned out that Bush, not
Gore as expected, benefited from that line of reasoning.
Perhaps it's true that conservative law professors are more likely
than liberal law professors to be "public relations flacks for
political hacks." If so, the response to Bush v. Gore sure doesn't
provide evidence.
References
1. http://balkin.blogspot.com/2008/05/on-not-getting-over-it.html
2. http://www.opinionjournal.com/extra/?id=65000781
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267874
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=428164
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=555787
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