Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
This story is all over the legal blogosphere. UC-Irvine is starting a law school and signed a contract with Erwin Chemerinsky to be the first dean of the school; a week later, they decided not to hire him for the job. Explanations vary. Here's Chemerinsky's take:
Erwin Chemerinsky, a well-known liberal expert on constitutional law, said he had signed a contract Sept. 4, only to be told Tuesday by Chancellor Michael V. Drake that he was voiding their deal because Chemerinsky was too liberal and the university had underestimated "conservatives out to get me."
Drake offers a slightly different story:
Later Wednesday, however, Drake said there had been no outside pressure and that he had decided to reject Chemerinsky, now of Duke University and formerly of the University of Southern California, because he felt the law professor's commentaries were "polarizing" and would not serve the interests of California's first new public law school in 40 years.
I find that more than a little hard to believe. Did he just discover Chemerinsky's writings after signing a contract and hiring him as dean? If so, Drake clearly didn't do his job. This comment seems spot on:
"It seems late in the day to notice to Erwin Chemerinsky is a prominent liberal," said John Jeffries, University of Virginia Law School dean. "That's been true for as long as I've known him. It's rather like discovering that Wilt Chamberlain was tall. How could you not know?"
Drake seems to be figuring out just how badly he screwed this all up:
Drake said he worried that the controversy had the potential to harm the university's reputation. "It was the most difficult decision of my career," he said in an emotional interview, his voice at times quivering.Legal academics said Chemerinsky's sacking could make it difficult for UCI to attract a top-flight dean, students and faculty.
Ya think? Drake should be worried, and frankly it's his job that should be on the line here. There's really only two possibilities here: either he really was unfamiliar with Chemerinsky's voluminous writings when he signed a contract with him, in which case he's clearly incompetent and didn't do due diligence before making an incredibly important hiring decision, or he's lying about the reason.
Either way, Drake has serious credibility problems and you can be damned sure that's going to impede his ability to build a quality law school faculty. Douglas Kmiec, a prominent conservative legal scholar, wrote a fairly blistering op-ed about the situation and said what I think most conservative legal scholars would say:
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.
All true. Sandefur said the same thing:
Nobody could disagree more strongly than I do with virtually everything Erwin Chemerinsky believes, but the man is unquestionably qualified to be dean of a law school and would without doubt be a fantastic addition to the UC system. He is a widely respected lawyer, whose books on federal jurisdiction and constitutional law are indispensable reference works for lawyers from every political perspective (I routinely use them myself). Chemerinsky may have some kooky ideas about the Constitution, but I have no reason to think he would be an intellectual bully or overly biased in his administration, and he would be an excellent dean.
Whatever the reason this was done, UC-Irvine and its chancellor are looking very, very bad. Good luck finding your first dean now. You certainly aren't going to find anyone with anything like the reputation of Chemerinsky now. You're going to be fishing in a whole different lake of candidates. I hear Michael Little is looking for work.
Comments
Get used to it.
While Karl Rove may have 'retired', the Rovian Revolution continues, purging the entire government and all its contractors and all the electorates of left-leaners. Don't think of momentum, that's the wrong metaphor. Think cancer. The right-wing crazies have been inserted to replace rational people going all the way back to the beginning of Nixon's first term. Even when he (who was, after all, a crook) was forced out in disgrace, more crazies got switched in (the metaphor here is crooked dice) under Ford, and then came the Reagan Revolution with its wholesale purging, which continued under Papa George.
When Clinton came in, the cancer was so advanced that more crazies got switched in by other crazies than got switched out by rationals.
Then came Baby George, who went insane immediately, and Cheney ran the secret government, while Rove unleased his revolution.
Don't count on a fix in your lifetime. It's either laugh or cry, and I'm tired of crying.
Posted by: Grackle | September 14, 2007 10:51 AM
That's cold ... very cold.
I'm just not sure who should be most insulted ...
Posted by: John Pieret | September 14, 2007 11:03 AM
Ideology over competence.
I thought that went out with the USSR.
Posted by: gwangung | September 14, 2007 11:34 AM
The only way for UC to get over this and regain access to the top pool of candidates would be to fire Drake and hire a new chancellor.
Posted by: PhysioProf | September 14, 2007 12:34 PM
"Erwin and I seldom agree on constitutional outcome.[...] Yet there is no person I would sooner trust to be a guardian of my constitutional liberty."
Am I missing something here?
Posted by: Ferrous Patella | September 14, 2007 12:37 PM
If you read Kmiec's op-ed, you'll find this statement that I think explains his comment about trusting Chemerinsky with his constitutional liberty:
Basically, Kmiec is admitting that he himself is less protective of liberty than Chemerinsky is because he would err more on the side of law enforcement rather than individual rights.
Posted by: Ed Brayton | September 14, 2007 12:59 PM
Just as a libweral becomes more law-and-order if he/she is mugged, a conservative becomes a civil libertarian when he/she gets caught. See Scooter Libby, Larry Craig, Ollie North, Caspar Weinberger, ...
Posted by: natural cynic | September 14, 2007 2:09 PM
This isn't the first major bad publicity for UC Irvine (don't forget it's in an ultra-conservative part of Orange County). There was an issue at their medical school a few years ago regarding an infertility program where they were (as I recall) mixing up fertilized embryos so that women got children that weren't theirs. Many people had to resign including (again if I recall correctly) the dean of the medical school.
Posted by: ThomasTallis | September 14, 2007 2:57 PM
Having had the good fortune to meet Prof. Chemerinsky last November, I can say that Irvine is lucky as hell to have got him, and stupid as hell to have dropped him.
He is not only a brilliant scholar, but also a genuinely pleasant person. He would have made a great dean and I think would have made all but his most shrill and belligerent of critics feel comfortable at the law school.
Posted by: Frito | September 14, 2007 3:06 PM
I eagerly await to see what the comment on this will be from those erstwhile defenders of academic freedom, William Dembski and the Discovery Institute.
Posted by: Coin | September 14, 2007 3:15 PM
No, this is actually funnier. Rather than undergo a change of heart after such an event, or even anticipate having one, Kmiec seems to be admitting his hypocracy (if it can still be called that) upfront. He supports "the needs of law enforcement" for everyone else, but would rather have Cherminsky in control when its his own ass on the line.
Posted by: Stagyar zil Doggo | September 14, 2007 6:55 PM
"There was an issue at their medical school"
Now that you mention it, didn't they also have some kind of cadaver scandal also? Maybe that was a different UC medical school.
Posted by: PhysioProf | September 14, 2007 6:59 PM
Let's not pile on Kmiec too much, guys. I disagree with his stance, too, but he's obviously got integrity. He's clearly able to distinguish his strong disagreement with Chemerinsky's ideas from his evaluation of Chemerinsky's person. That's an important trait that too many people lack.
Posted by: Wes | September 14, 2007 7:08 PM
Frito--I too have had the pleasure of meeting him and I agree with you 100%.
Hard to imagine what kind of pressure was brought to bear on Drake.
Posted by: David C. Brayton | September 15, 2007 12:22 AM
*boggle*
Ed just single-handedly gave me my first increase in faith in humanity in some time.
There are still people out there who recognize that people with differing views are not necessarily evil. Who knew? Ok, I knew, but so rarely see it proclaimed publicly. Give me another few doses of this and I just might be brave enough to admit on Pharyngula that sometimes, on some issues, libertarians have a point.
Does UC-Irvine have a financially dominant conservative donor? Is the law school itself being helped along by any particular person/group?
Posted by: Sean | September 15, 2007 12:54 AM
I think you'll find that few disciplines have the kind of collegiality you will find in legal scholarship. I'm not at all surprised that conservative scholars like Douglas Kmiec and John Eastman have come to Chemerinsky's defense. This is quite routine in the world of legal scholarship. This again illustrates the distinction between what I call pedestrian conservatives and intellectual conservatives. The pressure apparently came not from conservatives in the field but from a big money donor.
Posted by: Ed Brayton | September 15, 2007 1:03 AM
"pedestrian conservatives and intellectual conservatives" is more elegant than my formulation, which is "Sean Hannity conservatives" i.e. complete morons, and "George Will conservatives" i.e. smart conservatives with whom I disagree.
Posted by: steve s | September 15, 2007 1:49 AM
Since when can the University decide not to hire Chemerinsky AFTER signing a contract with him? This sounds like a flagrant breach of contract.
Posted by: Bill Poser | September 15, 2007 3:39 AM
Flagrant breach of contract, yes.
Or so I suppose ... I wonder whether the contract had a clause making it subject to the Chancellor's approval or something.
Anyway, when you allow for contingencies (he could possibly pick up a similar level job somewhere else) and require him to mitigate his loss (how much more was he going to get than in his existing job? had he actually quit his existing job?), the damages might not be all that large. I guess it was worth it to the university, for whatever bizarre reason, to lose a star professor and to risk litigation (or pay whatever settlement might have been reached already).
Posted by: Russell Blackford | September 15, 2007 5:56 AM
While I agree about Hannity, I still do not quite understand how anybody can respect Will. His logic has been rather obviously flawed for decades, and whatever capacity for reason he has disappears completely when he is criticizing any Democrat.
Posted by: RickD | September 15, 2007 8:44 AM
Since when can the University decide not to hire Chemerinsky AFTER signing a contract with him? This sounds like a flagrant breach of contract.
I suspect that Chemerinsky signed the contract papers first, and that the Irvine never did. If that's the case, then it would likely be held that no contract actually existed just because Chemerinsky signed the document.
I'll admit that it gets a bit more complicated if Chemerinsky made certain arrangements in view of an apparent oral agreement.
Posted by: raj | September 15, 2007 11:11 AM
I'm not up on all the details, but Bren has his own wseb site to set the story straight.
Posted by: Tegumai Bopsulai, FCD | September 17, 2007 10:56 AM
Decision reversed
http://chronicle.com/news/index.php?id=3042
In Abrupt Reversal, Erwin Chemerinsky to Become Law Dean at UC-Irvine
The University of California at Irvine is hiring Erwin Chemerinsky as its law dean after all. In a news conference that is still going on, the university's chancellor, Michael V. Drake, is announcing that Mr. Chemerinsky, a professor at Duke University, will become the law school's inaugural dean, less than a week after Dr. Drake drew an avalanche of criticism for at first offering Mr. Chemerinsky the job, then withdrawing the offer because he was "too politically controversial" -- which many critics viewed as code words for "too liberal."
Posted by: Gerard Harbison | September 17, 2007 3:37 PM
Wow. I'm astonished that Chemerinsky would take the job after all this. I have to speculate that he's negotiated one whale of a huge parachute.
Posted by: Dan | September 17, 2007 4:32 PM
So did Drake explain why he re-offered Chemerinsky the position? Did he decide Chemerinsky wasn't politically controversial after all, or just that he suddenly didn't care anymore?
Is this how he makes every decision? Just kinda toss a suggestion out there, and decide what to do about it based on which pressure group yells at him louder?
Posted by: Coin | September 17, 2007 4:51 PM
I'm sure Chemerinsky took the job because it's good to be the Dean (as Mel Brooks might say). Drake didn't give any coherent reason for the reversal of the reversal. If I found myself in as embarrassing a position as Drake did, I think I'd do what he did; reverse as fast as possible, and neither apologize nor attempt to explain.
In other news, UC Davis has reversed an invitation to Larry Summers to speak at a board dinner for the Regents. Apparently the very idea Summers might be invited to such an affair made local feminists swoon, which is what feminists seem to be doing these days when Larry is around, at least if Nancy Hopkins is representative. I'm waiting to hear the explanations about why this disinvitation is altogether different.
Posted by: Gerard Harbison | September 17, 2007 5:38 PM