In Chemerinsky’s defense

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Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.

So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin’s political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom.

Erwin and I seldom agree on constitutional outcome. I’m conservative, and he’s liberal. We have written competing textbooks. We have debated frequently in the media. Before the U.S. Supreme Court, if Erwin is for the petitioner, it’s a good bet I can find merit in the cause of the respondent.


Yet there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal. When students have difficulty grasping basic concepts, I do not hesitate to hold out his treatise on the Constitution as one that handles matters thoroughly and dispassionately. Across the nation, federal and state judges turn to Erwin each year to give them an update on the changes in the law and the legal directions of the Supreme Court.

Erwin has never hidden his progressive politics; they must have been known to the search committee that identified him as a candidate to head the law school.

In conversation, in the classroom and in the courtroom, he fights passionately for human rights, while giving less deference, in my opinion, to the needs of law enforcement or to those who seek to preserve order, structure and tradition in society. Yet he does not denigrate his opposition. He engages. He challenges. He inspires.

It was my privilege to serve as a law school dean for a number of years. I know that faculty members look to their deans for leadership, encouragement and support. The fate of the law school, especially one just starting out, is often determined by the hard work and dedication of its dean.

UC Irvine would have benefited greatly by Erwin’s service. He would have been a model for the faculty -- widely published, dedicated to his students, civically involved. He would have assembled a world-class faculty and, in a short period, would have competed for some of the most talented students in the country.

Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.


I will continue to believe that the law has its own place above politics, but Erwin’s dismissal surely makes that belief harder to sustain. UC Irvine’s inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer.

However great the difficulties that await the UC Irvine law school, I know this for sure: Erwin Chemerinsky, as a man of goodwill and abundant kindness, will wish it only the best. It will need every bit of his goodwill now that it has forfeited and spurned his good services.

Douglas W. Kmiec is a professor of law at Pepperdine University.