Bearing false witness: the Clinton impeachment and the future of academic freedom.

Author:Devins, Neal

Academic freedom may prove to be one of the casualties of the Clinton Impeachment.(1) By signing letters about the constitutional standards governing impeachment, an issue most of them know very little about, many academics placed partisanship and self-interest above all else. The logic of academic freedom, however, cannot be squared with academics who see celebrity and power as more important than the pursuit of truth. Grounded in the belief that academics searching for knowledge in free universities will strengthen a free society, academic freedom insulates the academy from political attack.(2) It also gives credibility to the writings, testimony, court filings, talk show appearances, and other activities of academics who seek to influence public policy. At the least, academic freedom conveys the message that scholars who speak out on public issues know something about those issues. When academics join forces to send a purely political message, their reputation as truth-seekers will diminish and, with it, their credibility. While that day has not yet arrived, it is rapidly approaching. Accusations of political correctness run amok and goofiness(3) are becoming increasingly mainstream.(4) Unless academics can answer these charges, they risk becoming irrelevant. Consequently, when a significant number of law professors and historians hold themselves out as experts when they are not, they mislead, and all academics pay a price. For this very reason, academics can ill afford another nail to be placed in the coffin of the dispassionate academic expert. Rather, they must hold politically motivated professors accountable for abusing academic freedom.

The practice of bolstering a political argument with the help of an academic expert was on full display during the Clinton impeachment. In explaining why he could not have committed a "high crime and misdemeanor," the President asked rhetorically: "[W]hy did nearly 900 constitutional experts say that they strongly felt that this matter was not the subject of impeachment?"(5) The President, of course, was referring to two open letters sent on his behalf--one from 400 historians; the other from more than 430 law professors.(6)

The President was hardly alone in referring to these letters. His lawyers entitled a section of their House Judiciary Committee submission "Recent Statements by Historians and Constitutional Scholars Confirm that No Impeachable Offense is Present Here."(7) Along the same lines, Democrats contended that the "scholarly support for the [President] ... is overwhelming, and it cannot be ignored"(8) while Republicans complained that the letters "substitute[d] political opinion for scholarly analysis."(9)

A decade earlier, 2,000 legal academics banded together in another letter-writing campaign. The subject: Robert Bork. The objective: to communicate that Bork's thinking was outside the constitutional mainstream. This campaign also hit pay dirt. Finding Judge Bork "[o]utside the [t]radition of Supreme Court [j]urisprudence," the Senate Judiciary Committee Report highlighted this "unprecedented" opposition to the nomination.(10)

Beyond Bork and impeachment, academics have written joint letters on abortion, affirmative action, bankruptcy reform, campaign finance, copyright reform, gun control, international human rights, supermajority requirements, the nomination of federal court judges, and much more.(11) Portraying their signatories as "concerned legal scholars," "constitutional scholars," "professors of law,"(12) and "professors of bankruptcy and commercial law, these letters are intended to communicate the consensus opinion of academic experts.(13) While these letters have not overtaken expert testimony and individual letters to Congress, letter-writing campaigns have become an increasingly important mechanism for academics to send a message to Congress. Why, though, do people pay attention to these letters? Why treat these letters with more deference than, say, a petition from the ACLU or the NRA? The answer, of course, is that academics have a reputation for placing the search for truth ahead of partisanship. Unlike movie stars, interest groups, or the person on the street, the credibility of academics is tied to their purported willingness to speak "[t]ruth to [p]ower."(14)

Society, acting on this vision, accords academics certain privileges that it accords no one else (except perhaps judges).(15) Academic freedom, tenure, sabbaticals, and the like encourage academics to think independently and to challenge prevailing norms through their scholarship.(16) At the same time, the trust that society has placed in academics, as well as the resources it has provided them, are grounded in certain assumptions about academic conduct. Academics, for example, have an obligation "to speak truthfully about the issue at hand, because they have a detached cast of mind as well as a large stock of relevant and reliable knowledge on the subject at issue."(17) Correspondingly, before speaking as experts, academics have an obligation to read and to think about arguments on both sides of an issue. The ways of the scholar, as Alexander Bickel put it, "appeal to men's better natures" because they are about the leisure of thinking, training, and insulation, not "the moment's hue and cry."(18) Whether or not academics live up to this obligation, Bickel's vision still resonates with much of the public.(19) For this very reason, policy makers and media outlets seek out academics on many of the issues that divide the nation. Academic letter-writing campaigns likewise capitalize on the academic's reputation for dispassionate expertise. Consider, for example, the anti-impeachment letters. Writing "neither as Democrats nor as Republicans" (but as "professors of law"), these citizen scholars saw the drive to impeach the President as a threat to "our constitutional order."(20) Signed by many of the nation's most prominent law professors and historians, it is no wonder that these letters were taken seriously by the President's supporters as well as his foes. Upon closer inspection, however, these letter-writing campaigns are little more than a testament to the willingness of many academics to pawn off fake knowledge.

Of the 900 signers of the anti-impeachment letters, for example, it is doubtful that many had thought seriously about the constitutional standards governing impeachment.(21) Impeachment, at least until this past year, is a subject that is rarely written about and rarely taught.(22) Indeed, nearly all of the legal academics who testified before the House Judiciary Committee were better known for their allegiance to either liberal or conservative causes than for their scholarship about impeachment.(23) For this very reason, these academics have been roundly criticized both for the quality of their constitutional analysis and for "conducting a transparently political debate in constitutional terms."(24) Far more significant, most of the historians who signed the letter were not constitutional specialists.(25) Among the law professors, only one-third of the signatories teach constitutional law.(26)

Even among professors of constitutional law, moreover, there is no reason to think that these individuals have "some expertise on the topic of impeachment."(27) Consider, for example, professors (such as myself) who have used Cass Sunstein's constitutional law casebook. Just over one page of this 1800-page tome considers the constitutional standards governing impeachment.(28) And that one page provides absolutely no guidance in assessing the appropriateness of the Clinton impeachment.(29) Consequently, whether or not the question raised in the Clinton impeachment was "close," it is doubtful that professors of constitutional law--let alone all law professors--were well positioned to render an expert opinion on the subject.(30)

At one level, the lesson here is simple. Many of the law professor and historian signatories were animated by partisanship and self. interest, not scholarship.(31) Needless to say, there is a real temptation for academics who want to be part of the fray, who want to see their names in print, who want to tell their families that they did something that mattered, to sign a mass letter. Other academic letter signers may not care at all about celebrity. They may, however, care a great deal about the President's ability to pursue his agenda. In particular, partisan Democrats who voted for the President and support his policies may sign the letter for political reasons.(32) As it turns out (surprise), the academy is overwhelmingly left-liberal, overwhelmingly Democratic.(33) Take the case of the law professors.(34) "Only [ten] percent of [them] characterize themselves as conservative to some degree,"(35) while more than eighty percent of them are registered Democrats.(36) Therefore, many legal academics see Kenneth Starr--who argued against abortion rights and affirmative action as the Bush administration's Solicitor General--as their nemesis. At a panel on impeachment at the 1999 American Association of Law Schools convention, for example, law professors loudly booed when it was revealed that one of the panelists, John McGinnis, clerked for then-D.C. Circuit Judge Starr. For these professors, signing a letter that would place Starr's views on impeachment "outside the legal mainstream" would be manna from heaven.

This is not to deny that some letter signers signed on for reasons other than partisanship.(37) But it simply begs the question to "assum[e]" (as do defenders of the letter-writing campaign) that dispassionate expertise animated law professor signatories.(38) With no evidence of preexisting expertise on impeachment and with ample evidence that most law professors are left-liberal Democrats, the possibility of partisanship seeping into the anti-impeachment campaign is anything but remote.(39) For this reason, letter organizers cannot rely on...

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