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:

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.