Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 25, 2013
POLITICS: Jane Mayer's McCarthyist Attack on Ted Cruz

The New Yorker's Jane Mayer, in a pair of blog posts, served up the latest attempted Democratic Party talking point on freshman Texas Senator Ted Cruz: that Senator Cruz is the second coming of Joe McCarthy. (ThinkProgress coordinates with a predictable illustration for those too simple-minded to get Mayer's point). As it happens, I have some firsthand knowledge of the subject of Mayer's vague, thinly-sourced hit job. She'll have to do better next time, because Ted Cruz is right about Harvard Law School in the mid-1990s. If she'd talked to more people, she might have figured that out.

Here's the part of Cruz's remarks at a 2010 event that Mayer presents as shocking evidence of Cruz's mendacity:

He then went on to assert that Obama, who attended Harvard Law School four years ahead of him, "would have made a perfect president of Harvard Law School." The reason, said Cruz, was that, "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government."

Leaving aside Mayer's failure to check a fairly basic fact in the president's biography (Obama graduated in the spring of 1991; Cruz entered HLS in the fall of 1992), Cruz is absolutely right on the basic point here: there were multiples more Marxists on the Harvard Law faculty at the time than open Republicans. I know because I was there. I was a year behind Ted at Harvard, and was president of the HLS Republicans in 1994-95, when Ted was a third-year law student. I can't say I knew Ted well at the time (he was more involved in the Federalist Society and Law Review), but we crossed paths a few times, and even then everyone knew he was a superstar who was going places in life. He was undoubtedly reflecting on the same things I saw in those days.

Aside from a generic denial by a current Harvard spokesman, Mayer's only source for the original article is Charles Fried, my old constitutional law professor who was - at the time - the faculty advisor for the HLS Republicans, but has in more recent years become a vocal spokesman for all things Obama. On the one hand, Fried argues that Cruz has understated the GOP presence in the extensive Harvard faculty:

I can right offhand count four "out" Republicans (including myself) and I don't know how many closeted Republicans when Ted, who was my student and the editor on the Harvard Law Review who helped me with my Supreme Court foreword, was a student here.

Ironically, given the tenor of Mayer's article, she never asks Fried to name any of these people, but just takes him at his word that he has a list of Republicans on the faculty. Now, closeted Republicans may have been known to Fried in the faculty lounge, but they were of little help to those of us in the student body, seeing as how both the liberals and the left-wing radicals were all very open and vocal. At the time, I was aware of only one other Republican or conservative of any stripe on the faculty besides Fried: Mary Ann Glendon, who was busy during much of 1994 and 1995 with activities on behalf of the Vatican (which she represented at a 1995 conference in Beijing). The fact that we had so little representation on the faculty was a running joke among conservative students; I still have the t-shirts we printed after the 1994 elections:

 photo HLSGOPtshirt.jpg

When Fried was appointed to the Massachusetts Supreme Judicial Court in 1995, we legitimately feared that we would not be able to find a faculty advisor, which of course any student group needs; as it turned out, Professor Glendon stepped in with Fried's departure. It may be the case that there were two other Republicans on the faculty, but to this day I have no idea who they were; I assume Ted Cruz didn't either.

Of course, the more controversial part of Senator Cruz's equation is his charge that there were Marxists on the faculty. Mayer weakly allows:

It may be that Cruz was referring to a group of left-leaning law professors who supported what they called Critical Legal Studies, a method of critiquing the political impact of the American legal system. Professor Duncan Kennedy, for instance, a leader of the faction, who declined to comment on Cruz's accusation, counts himself as influenced by the writings of Karl Marx. But he regards himself as a social democrat, not a Communist, and has never advocated the overthrow of the U.S. government by Communists. Rather, he advocated widening admissions at the law school to under-served populations, hiring more minorities and women on the faculty, and paying all law professors equally.

Cruz's spokeswoman confirmed, in response, that this is precisely the faculty clique he referred to, and Mayer does not dispute their numbers on the faculty. But her description is a rather serious whitewash of what Kennedy and the other "Crits," as they were colloquially known on campus, professed and taught: a menu of class conflict, false-consciousness theory and subversion of property rights that would have fit comfortably on the syllabus at Patrice Lumumba University. Here's how one of Harvard's own courses describes the movement:

A self-conscious group of legal scholars founded the Conference on Critical Legal Studies (CLS) in 1977. Most of them had been law students in the 1960s and early 1970s, and had been involved with the civil rights movement, Vietnam protests, and the political and cultural challenges to authority that characterized that period. These events seemed to contradict the assumption that American law was fundamentally just and the product of historical progress; instead, law seemed a game heavily loaded to favor the wealthy and powerful. But these events also suggested that grassroots activists and lawyers could produce social change.

Fundamentally convinced that law and politics could not be separated, the founders of CLS found a yawning absence at the level of theory. How could law be so tilted to favor the powerful, given the prevailing explanations of law as either democratically chosen or the result of impartial judicial reasoning from neutral principles? Yet how could law be a tool for social change, in the face of Marxist explanations of law as mere epiphenomenal outgrowths of the interests of the powerful?

Hosting annual conferences and workshops between 1977 and 1992, CLS scholars and those they have influenced try to explain both why legal principles and doctrines do not yield determinate answers to specific disputes and how legal decisions reflect cultural and political values that shift over time. They focused from the start on the ways that law contributed to illegitimate social hierarchies, producing domination of women by men, nonwhites by whites, and the poor by the wealthy. They claim that apparently neutral language and institutions, operated through law, mask relationships of power and control. The emphasis on individualism within the law similarly hides patterns of power relationships while making it more difficult to summon up a sense of community and human interconnection. Joining in their assault on these dimensions of law, CLS scholars have differed considerably in their particular methods and views.

Many who identify with the critical legal studies movement resist or reject efforts to systematize their own work....

Some critical scholars adapt ideas drawn from Marxist and socialist theories to demonstrate how economic power relationships influence legal practices and consciousness. For others, the Frankfurt School of Critical Theory and its attention to the construction of cultural and psycho-social meanings are central to explaining how law uses mechanisms of denial and legitimation. Still others find resonance with postmodernist sensibilities and deconstruction, notably illustrated in literary and architectural works. Some scholars emphasize the importance of narratives and stories in devising critical alternatives to prevailing legal practices. Many critical legal scholars draw upon intellectual currents in literature, pop culture, social theory, history, and other fields to challenge the idea of the individual as a stable, coherent self, capable of universal reason and guided by general laws of nature. In contrast, argue critical scholars, individuals are constituted by complex and completing sources of ideology, social practice, and power relationships.

(See more here on how Barack Obama's own views of property rights can be traced back to the Crits - Obama had vocally supported one of the faction's leaders, Derrick Bell, at a protest in 1991)

Now, it's something of a hyperbolic flourish to describe armchair radicals of this sort as people "who believed in the Communists overthrowing the United States government," and as Fried notes, the fall of the Soviet Union in 1991 had necessarily pushed a lot of previously proud Marxists to go underground and readjust their rhetoric. But as even Matt Yglesias conceded, "[t]he conclusion that ...a follower of Marx's ideas is, like Marx, a Communist seems perfectly plausible." The fact that the fall of Communism made the Crits somewhat abashed about their intellectual heritage and its logical conclusions is no reason to discount the thorough Marxist influence in their work, or shrink from asking why arguably the nation's leading law school should employ several times more of them than Republicans.

Cruz made quite clear who he was talking about and why, and any fair-minded observer can draw their own conclusions - unlike, say, when the Senate Majority Leader last summer claimed an unnamed, anonymous source who told him Mitt Romney hadn't paid his taxes. Cruz didn't stretch to connect people via tenuous associations, like those who tried to paint Sarah Palin as a secessionist for a marginal political party her husband briefly joined or Rick Perry as a racist for something written on a rock by a person who sold land to his father. He called a bunch of Marxist professors Marxists, and while he may have thrown in a rather excessive dramatic flourish, his speech drew the obvious conclusion to where Marxism necessarily leads. If Mayer had done her homework, she would have recognized what pitiful support this provides for the talking points she was laboring to shore up.

But for a freshman Senator to draw the kind of fear that generates this type of assault from the New Yorker, he must be doing something right.

Posted by Baseball Crank at 12:00 AM | Law 2009-13 • | Politics 2013 | Comments (13) | TrackBack (0)
Comments

Wow, what an important movement. Why take practical elective classes like admin law, bankruptcy, family and juvenile law when you can simply "deconstruct" them? Very helpful in private practice.

Posted by: MVH at February 25, 2013 9:00 AM

This post doesn't really address the most important part of Cruz's comment - that there were 12 professors who advocated "overthrowing the United States government". Simply calling it a "hyperbolic flourish" doesn't do it. After all, advocating overthrowing the government is advocating treason. That's not a "hyperbolic flourish" - that's a pretty heinous accusation if it isn't true.

I went to law school the same years you did - and my school had a bunch of leading CLS-types too. They were way out there - but advocating treason? I don't think so.

Posted by: A.S. at February 25, 2013 10:55 AM

Cruz has the libs shitting their pants in fear. They are seriously worried that Cruz and/or Rubio will be on the ticket facing one of their pasty-white geriatrics in 2016.

Posted by: rspeicher at February 25, 2013 3:00 PM

If you're taking flak, you know you're over the target.

Posted by: @PurpAv at February 25, 2013 4:22 PM

Still waiting for the modern left in America (aka, progressives) to deliver that long-awaited condemnation of marxism/socialism, since they're supposedly not followers.

Posted by: RW at February 25, 2013 4:29 PM

What about Phil Areeda, who was a professor at HLS at the time? He served in the Eisenhoiwer administration, and as President Gerald Ford's White House Counsel. Plus he signed an advertisement urging Nixon's reelection in 1972.

Posted by: DW at February 25, 2013 4:52 PM

For Ms. Mayer, the group advancing Critical Legal Studies were not Marxists, or even Leftists, but people smack dab in the Mainstream of Political Thought, at least as how it was perceived on the banks of the Charles River, and in the drawing-rooms of today's Manhattan and Georgetown.
Jane is a good Useful Idiot!

Posted by: askeptic at February 25, 2013 4:55 PM

Must be especially sweet to have firsthand knowledge to refute this hatchet job from the compliant media against a conservative. They do get antsy whenever the subject of Harvard comes up.

Posted by: Dave Rice at February 26, 2013 7:16 AM

It's Jane Meyer we're talking about here. Thinly sourced hit pieces directed against Republicans are pretty much her reason for existing, and has been for over twenty years.

Posted by: MSE at February 26, 2013 12:51 PM

I should know better, but I couldn't help myself.

The fundamental point of Mayer's blog posts related to Cruz's claim that a specific number of HLS faculty were Communists "who believed in the overthrow of the US Government." While you attempt to parry this central charge as "something of a hyperbolic flourish," (something??) it is precisely the type of false innuendo giving rise to McCarthyism.

Your defense of Cruz does not in the least rebut Mayer's point that Cruz uttered a falsehood in an attempt to smear the President.

All in all, however, here's hoping Cruz succeeds in becoming the face of the GOP. No doubt hilarity will ensue.

Posted by: Magrooder at February 26, 2013 5:13 PM

The problem is that Conservatives like Cruz have also called center-right, in-the-pockets-of Wall Street, Barack Obama a Marxist.
If Obama is a Marxist, then sure, Harvard Professors were all Marxists, and so is the head of CitiBank (as well as the guys Crank works for).

More likely: Cruz gets props from Crank for pissing off liberals.

Posted by: Berto at February 27, 2013 12:31 PM

Yeah, I'm sorry Crank but you can't just dismiss Cruz wrongfully accusing a large segment of the Harvard faculty with sedition as "hyperbolic flourish". I know you see him as some true believer rising star but what he did is classic McCarthyism and worthy of the label in every respect. And if you think "critical theory" = Marxist adherent you really need to come down off of Galt's Gulch and read a book or two outside of the BJ Abstracts.

Posted by: seth soothsayer at February 27, 2013 5:53 PM

Wait, so Cruz wrongfully accusing a dozen HLS faculty members of seditious beliefs is "hyperbolic flourish", but calling him out for that nonsense is McCarthyism? You can't be serious.

Posted by: seth soothsayer at February 27, 2013 6:20 PM
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