Professors and politics.

Author:Sunstein, Cass R.
Position:Response to article by Neal Devins in this issue, p. 365

In the last few years, a number of law professors have been involved in some highly public issues, not least through the circulation of letters with multiple signatories, expressing a view on some issue of national importance.(1) It is not clear that there is anything like a trend in this direction; certainly teachers of law have participated in what some would consider "partisan politics" for many decades. But Neal Devins is right to raise questions about the legitimacy and consequences of political involvement by academics.(2) It is also interesting to consider the relationship between such involvement and academic freedom; if law professors are not concerned with the pursuit of truth, the case for academic freedom is certainly weakened. The Clinton impeachment provides the immediate motivation for Devins's discussion. I offer a few remarks here on academic involvement in the impeachment debate, with a few references to my own experience,(3) and with an eye toward drawing some general lessons about professors and politics, including presidential politics.

  1. PARTICULARS

    With respect to the President, the United States has now had three serious impeachment inquiries in its entire history. As the nation began discussion of the impeachment of President Clinton in 1998, many constitutional law professors concluded that no legitimate grounds for impeachment had been identified. On their view, the House of Representatives had started to embark on a constitutionally impermissible path, one with potentially significant consequences. This seemed unfortunate not merely because of the potential removal of the President, and hardly because of the nature of President Clinton's particular policies, but because of the constitutional illegitimacy and potentially destabilizing effect of resort to the impeachment mechanism.

    Some law professors believed that, as a technical matter, the constitutional question was not even close.(4) They believed that this interpretation was not a "partisan" view, that it had nothing to do with approval of President Clinton in general, and that it was the best reading of the Constitution--a reading that would attract support from a variety of possible approaches to interpretation and that 'would apply regardless of the political affiliation of the President. Before the hearings, members of the House of Representatives--themselves quite uncertain about the issue--asked, in private meetings with law professors:(5) What do law professors generally think? Where are they? Why aren't they saying anything? An obvious question was whether it might conceivably be useful for members of Congress, and the public, to know that there was widespread professional opinion to the effect that impeachment would be unconstitutional.

    These were the circumstances in which a number of professors (including me) were willing to circulate and to sign two letters opposing impeachment. One of the letters, not limited to teachers of constitutional law but circulated to law professors generally, provided an extended analysis of the legal issues; the other, limited to teachers of constitutional law,(6) offered a one-sentence conclusion to the effect that impeachment would not be "appropriate" in light of the charges made by Judge Starr.(7)

    Many of those who signed or circulated these letters accepted (as I do) all or most of Devins's general views about the need to separate professional opinion from partisan politics. To say the least, most of those of us who were involved in all this really do not enjoy participating in petition drives. Most of us thought that the process of sending and responding to emails and collecting signatures was a boring, unpleasant, and tedious business(8)--part of a most unwelcome (even if occasionally hilarious(9)) diversion from our academic jobs. Nothing here seemed glamorous, a source of "fame,"(10) or in anyone's self-interest. But the relevant law professors believed that this was an exceedingly unusual event, that the House of Representatives was on the verge of acting unconstitutionally, and that it was appropriate, and maybe not inconceivably useful, for the public and elected representatives to be aware of a widespread (though not universal) professional opinion.

    I am not entirely sure what, in particular, Devins thinks was wrong with all this, or what lesson he wants to draw from it.(11) He does not argue that the impeachment of President Clinton was constitutionally acceptable (though he may believe this). He does not demonstrate nor even claim that the law professors who signed one or another letter were wrong on the merits. Nor does he argue for the (implausible) proposition that on principle, law professors should never speak publicly about important public issues.

    Devins suggests that developments of this kind may endanger academic freedom, an empirical claim that seems to me quite doubtful, even absurd. Is it imaginable that the tenure system for law professors would be eliminated if law professors frequently signed petitions on public issues? In any case, Devins does not discuss what academic freedom is for, to wit, the power to speak controversially about the truth as one sees it, free of risks of political reprisal. I agree with Devins that the principle of academic freedom is violated if those who enjoy it are not acting in good faith or are not pursuing truth (not a doubtful empirical claim about consequences but a sensible claim about principle, which is what appears to me to underlie Devins's essay). But nothing in this point argues against public statements by professors.

    Devins's concerns appear narrower. It seems to me that they fall in two categories. These categories are related but best treated separately.

    His first point has to do with the possibly limited expertise of many or some of those who signed the relevant letters. Devins says that "it is doubtful that many had thought seriously about the constitutional standards governing impeachment."(12) He appears to believe that at least by implication, some or many law professors held themselves out as specialists or experts when, in fact, they lacked knowledge about impeachment that would qualify them as such.

    For some of the signatories, perhaps this is true. But I think that Devins's judgment is too harsh. Impeachment is hardly an obscure or invisible issue in constitutional law, and in the wake of the Watergate controversy, many law professors developed genuine, if fairly general, views on the appropriate meaning of the phrase "high crimes or misdemeanors." Certainly most teachers of constitutional law know something about the governing legal standards; they know enough to know, for example, that smoking marijuana or speeding would not ordinarily count as a "high crime or misdemeanor." From there they could reason by analogy to the view that, at least as a general rule, a President cannot be impeached unless he has been charged with large-scale abuse of the powers that he has by virtue of being President.

    Those law professors who signed the longer letter but who do not teach constitutional law probably believed that they knew enough--from training and from substantive conversations with colleagues--to have a reasonably informed opinion about the threshold question of whether the charges against President Clinton made out an impeachable offense. Law professors who do not...

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