Where Is The Academic Truth Squad?
Have you heard of Mark W. Smith? He is a ’95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?
I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:
America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.
So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:
Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?
Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.
Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.
These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.