'Scaliagate' At Georgetown Law: The Conservatives Strike Back
Two prominent conservative professors come to the late justice's defense.
The controversy at Georgetown University Law Center over the passing of Justice Antonin Scalia rages on. As we reported last night, two professors — Gary Peller and Louis Michael Seidman, with Peller taking the lead — objected to GULC’s press release, Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia. They made their concerns — about both the press release and about Justice Scalia, who they essentially called a bully and a bigot — known in emails to Dean William Treanor and to their faculty colleagues. These emails were eventually cleared for dissemination to the student body, and they caused quite a stir.
How should conservatives have responded? One way might have been with a shrug. As Professor Glenn Reynolds argued over at Instapundit, “this is all just lefty virtue-signalling, and worthy of no more than mild, dismissive contempt.”
But two of GULC’s leading (and only) right-of-center voices, Nicholas Quinn Rosenkranz and Randy E. Barnett, decided to take a more aggressive approach. And it seems that Georgetown believes in the “equal time” doctrine — last night at around eleven o’clock, their vigorous rebuttal got blasted out to the entire student body as well.
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The professors begin by sharing warm memories of their interactions with Justice Scalia, like the time that Professor Rosenkranz sang “Oh, Danny Boy” with the justice, or the time that Professor Barnett had the justice as a guest in a 22-student seminar. After recounting the blow-by-blow of the press release issuance and the faculty email back and forth about it, they criticize their liberal colleagues for reacting insensitively to Justice Scalia’s passing:
For one’s colleagues to write, within hours of the death of someone one knows, likes, and admires, that he was a “defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic,” is startlingly callous and insulting, not only to his memory but to those of us who admired him. To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead – is simply cruel beyond words. But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it.
Unfortunately, the next day, recognizing full well that he would “cause … hurt [to] those with affection for J. Scalia,” and in violation of Georgetown email policy, Prof. Peller forwarded his email and Prof. Seidman’s to the entire student body at Georgetown Law, some 2000 students. Of those, at least a few hundred are conservative or libertarian. These students received an email yesterday, from a Georgetown Law professor, just three days after the death of Justice Scalia, which said, in effect, your hero was a stupid bigot and we are not sad that he is dead.
Professors Barnett and Rosenkranz then discuss how students were affected by the mass dissemination of the Peller and Seidman messages:
Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?
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This raises broader concerns, of course, about intellectual diversity — or the lack thereof — within the legal academy:
There are some people on earth who should not be mourned when they die. Adolf Hitler was such a person. Justice Scalia was not. (See, for example, the moving tributes by Harvard law professor Cass Sunstein and Justice Ruth Bader Ginsburg.)
The problem is that the center of gravity of legal academia is so far to the left edge of the political spectrum that some have lost the ability to tell the difference. Only on a faculty with just two identifiably right-of-center professors out of 125, could a professor harbor such vitriol for a conservative Justice that even Justice Ginsburg adored.
Here’s how Professors Barnett and Rosenkranz conclude:
Sadly, as just two professors on a faculty of 125, we are in no position to offer much reassurance to our students, beyond reporting that we have heard on the faculty email list, and privately, from a few of our Georgetown colleagues who objected to these messages. All we can do, really, is convey our solidarity with our wonderful students. We share your pain. We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.
But make no mistake: Civil discourse at Georgetown has suffered a grievous blow. It is a time for mourning indeed.
These are just excerpts from a much longer message, which you can (and should) read in full on the next page. It’s eloquent and persuasive, in my view.
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How do Georgetown law students feel about all of this? Here are some thoughts from Jacob Wittman (our default is to keep sources anonymous, but Wittman gave us permission to use his name and his Twitter handle, saying he feels no need to hide behind his concerns):
I transferred into Georgetown seeking an environment where right-leaning law students could engage in constructive conversation. The faculty play an important role in that conversation, and Professor Peller and Seidman’s comments have created an environment where right-leaning students feel as if they cannot speak out without facing the sort of extreme criticism displayed through the email thread. After several conversations with my conservative classmates, we will continue to hold true to our values and stand by the comments of Professors Rosenkranz and Barnett.
Other students expressed support for the concerns of the conservatives, but mixed in with some fatigue over the whole mess. Here’s a second source:
While I’m sympathetic to everything Profs. Rosenkranz and Barnett said in their email, I don’t think it’s productive to have this back-and-forth on the campus email listserve. Time to move on. Makes the faculty and the school look bad. I hold Professor Peller about 95% responsible for this.
Yes. Recall the comment in the introductory note to the Peller communication: “faculty are not permitted to communicate directly with the student body without prior authorization.” One might argue: this entire episode is exactly why the policy exists.
Finally, a third tipster:
[I]t strikes me as somewhat surprising how almost SJW-ish [“Social Justice Warrior”-ish] the end of the Open Letter sounds with its talk of micro-aggressions and trauma, etc. I wouldn’t have expected that from the two conservative profs at GULC.
But I do love Barnett & Rosenkranz defending Justice Scalia. Long live the Conspirators!
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I noticed the SJW-ish tone too, but thought to myself: that’s not a bug, it’s a feature. To the extent that the left is often about playing the victim, it seems to me that Barnett and Rosenkranz are saying, “Two can play at this game.” The conservatives are taking the “talk of micro-aggressions and trauma,” typically deployed so effectively by liberals, and turning it around on them.
Is it sincere, or trolling, or a little bit of both? To be honest, I find it hard to tell (but perhaps that’s a sign of how exquisitely calibrated the Barnett/Rosenkranz message is).
Both sides in this debate, the liberals and the conservatives, profess to be standing up for students — the liberals for students who feel oppressed by Justice Scalia, and the conservatives for students who feel oppressed by liberal orthodoxy. What do the actual students think?
I’ll leave you with this observation from one that’s representative of many others in our inbox: “The student body is pretty much over it at this point. As one of my friends put it, it’s a bunch of old guys arguing about how I should feel about somebody’s death.”
UPDATE (2/19/2016, 11:05 a.m.): Professor Peller claims that he’s been defamed. Most of the Georgetown faculty and staff are tired of this controversy.
UPDATE (2/23/2016, 12:15 p.m.): Check out what Georgetown’s Black Law Students Association (BLSA) has to say about all this.
(Flip to the next page to read the complete communication from Professors Barnett and Rosenkranz, and feel free to sound off in the comments.)
