The New McCarthyism in America


Here’s an article by Marjorie Cohn on how Erwin Chemerinsky was offered and then denied the deanship at the University of California at Irvine Law School due to his politics.

Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom


One week after the renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Duke Law Professor Chemerinsky he had proved to be “too politically controversial.” Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of “the top 20 legal thinkers in America.”

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans “they need to watch what they say, watch what they do.” The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it included the names of 117 “un-American” professors, students and staff members. A few months later, a blacklisting Internet cite called Campus Watch was launched. It publishes dossiers on scholars who criticize U.S. Middle East policy and Israel’s treatment of the Palestinians. Earlier this year, the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the “still-vivid memories of the McCarthy era” and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that “freedom of inquiry and the open exchange of ideas are crucial to the nation’s security, and that the nation’s security and, ultimately, its well-being are damaged by practices that discourage or impair freedom.”

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, “Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of September 11, 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled.”

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, “The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs.”

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake told the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California’s three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI’s November 16, 2006 press release announcing the inauguration of the new law school said, “UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities.” Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, “Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client.”

David Dow, Adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, “I can’t imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he’s been.” Dow’s words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky “the nicest person in legal education.” Conservative law professor Douglas Kmiec wrote of Chemerinsky, “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.”

One of the “controversial” matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, “There are more than 275 individuals on death row in California without lawyers for their post-convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court.”

Drake’s action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, “Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost.”

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, “We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity.”

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are archived at



Filed under Essays

22 responses to “The New McCarthyism in America

  1. ReWrite

    he was my con law barbri professor. like the rest of them, he was great

  2. If this is a joke, it’s in bad taste.

    If not, then yet another reason to see D.C. burn.

    Academics the “weak link” in the war on terra?

    Give me a fucking break. The weak link is the fact that we have a populace of ineffable stupidity, its collective head up its collective ass due to a total lack of education, and further, dependent upon the borderline illiterate media of sensationalism without references or corroboration.

    Yes, condemn professors who factually support the position that our Middle East policy is ineffective at best. Although I don’t doubt Israel’s desire to create issue with Palestine, that’s a rather moot point. Few people seem to remember that the rest of the Arab world forced Palestinian refugees out of their countries without due process, i.e. Egypt, Syria, Lebanon, Saudi Arabia, etc.

    Apparently, even for Arabs, Palestinians come from the trailer park.

  3. eric

    Yes, the irony is that the Palestinians live in refugee camps as “untouchables” in Lebanon and elsewhere. They have no rights and no mobility. The argument for not letting them become citizens or for not allowing them out of the refugee camps is that that would help the Israel’s in that the Palestinian refugees would no longer need a place to live. It’s a huge farce all around.

  4. Tina Kramer

    ere is a link to and the text of the letter which was sent to ACTA by Joe Lieberman and which was printed in THE NATION, hardly a stronghold of Lieberman apologists:

    Letter to ACTA
    Joe Lieberman

    December 18, 2001

    Jerry Martin
    American Council of Trustees and Alumni
    1726 M Street NW, Suite 800
    Washington, DC 20036-4525

    Dear Jerry:

    I am writing in regards to the Council’s recent report, Defending Civilization: How Our Universities Are Failing America and What Can Be Done About It.

    In the past, the Council has often sent me advanced copies of its publications before they have been released and asked for my support. In this case, though, I was never given the opportunity to review the Defending Civilization report before it was made public. I first learned of it through a call to my office from a reporter in Connecticut about a controversy the report had stirred at Wesleyan University.

    If I had been given an advanced copy, I would have objected to its content and methodology and asked you either to revise it or make clear that I had no involvement with it. But because that did not happen, and because I have been incorrectly listed on your website as a co-founder of the Council, a number of news accounts and commentaries have associated me with the report and incorrectly asserted or implied that I endorse it.

    This letter is meant to set the record straight about my disapproval of this report, which I consider unfair and inconsistent for an organization devoted to promoting academic freedom. To avoid any future confusion, I would ask you to remove any reference to me as a “co-founder” of ACTA from your website or other Council documents. And I would ask that you note in any future public statements that I do not support this specific report. Thank you.

    Joe Lieberman

  5. Lieberman is still a coward and typical political scumbag. They’ll be no approbation from me. Likely he’s on some University’s payroll and didn’t want to lose a check, errr, I mean their support for his position.

  6. ReWrite

    Lieberman is a bad character. Did you see him last week at the hearings? This guy is out of control, asking questions about how soon can we invade Iran.

  7. LOL, nice video Rewrite … LOL

    “Do you think ..” … why, yes, yes I do think. Think things like execution of political scumbags who sound as if they are reading from a manifesto. Things like investigating your finances, because you sound like a paid puppet. Things like having you tailed to see which terrorist outfit you are visiting with at dinner.

    What an asshat … who elected this guy? Maybe he wasn’t elected, maybe it was one of those “under the table” instances … you know, services rendered sort of scenario …

    Repulsive puke …

    Viva la Rivoluzione`!!!

  8. ReWrite formerly TheCommentKiller

    Lieberman is the guy that lost the democratic primaries in Connecticut so he ran as an Independent and won.

    I think it is pretty well known that he has close connections to the pro-Israel/Zionist lobbies. I would refer to them as a terrorist group, but i am not sure you would agree on that assessment.

    As bad as Lieberman was, the whole of lot of them mostly gave speeches at the hearings and never really asked any questions.

  9. Obviously then, Connecticut deserves whatever comes to them, they voted him in.

    Cugino, I realise there a number of Zionist groups that do qualify for “terrorist” organisations. My only problem with your position most times is that it is all encompassing broad brush. There are always those elements who prefer the fringe to rationality, and pro-Israel/Zionist types, are no different. I haven’t had any experience with them, so I am asserting subjective probability from standard behavior.

    I think the one place either of us is less likely to be in error, is broad brushing our government representatives as scumbags. We know 374 of them are on the record, probability of standard behavior given the environment says, we might find 10 that are actually useful. Hrrmmm, maybe only 7. Still seems too generous.

  10. ReWrite formerly TheCommentKiller

    I agree… Not all politicians can be like Dennis Kucinich.

    But your point, ties in with our(my) discussion on being politically correct… One should attempt to say/write/express what he/she actually intends to mean and considering the consequences of a given statement on the possible receivers (and secondary receivers, etc).

    That being said those hearings were pretty disgraceful on many counts.

  11. The worst part of those “hearings”, or more correctly punditry sessions, is that I’m not really hearing any dissension from the populace.

    That’s sad, pathetic really. Maybe you’re right, the war isn’t coming home. Americans may just be too ineffably stupid in the overall to even have the conscious attention to realise what the country is going towards.

    Nero’s plan looks better all the time. 🙂

  12. ReWrite formerly TheCommentKiller

    i am surprised, as an Ohioan, you didn’t respond to the Kucinich reference… I threw that out there to egg you on a bit.

    It is not that Americans are stupid per say, but they suffer from Affluenza… and once all of their debt comes tumbling down on them, they will be like heroine addicts that have lost everything and end up on the streets with nothing, but the clothes on their backs. And unfortunately they will be beat down to fight the revolution.

  13. I just bypassed the Kucinich comment, he’s from Cleveland and Ohio … what else need be said? Calling him a moron and a scumbag is just redundancy.

    You bring up a point that I’ve been mulling over, or rather combinations of such from the discussions here.

    Eric brought up the point that freedom isn’t free. I don’t think that can be said enough, but it is obvious that is a concept long since dead, buried in lime and forgotten. Then if we add to it your assertion of affluence misguiding the perspective of the populace, and look objectively at how American’s view freedom in the current; I think the “grave error” becomes a matter of observable social ubiquity.

    As a matter of understanding of historical context, I’ll add in my knowledge of Rome, from the authority of respectable and notable historians: We are creating a self-fulfilling prophecy. One might almost say it is manifest destiny for the Empire to fail.

    Two things might actually bring the revolution, either separately or in conjunction; racial divisiveness or religious fundamentalism posturing for supremacy.

    I think we all agree, Americans are armed to the teeth, and a gloriously violent lot. Between the racial problems, and Islamic pressures creating a new wave of Christian fundamentalism, with the added economic factors of immigration/illegals tension/pressure on American employment … hmmm, I don’t know, just seems that I’ve read this scenario somewhere before … hmmmm.

    I’m certain you won’t agree, but the case for stupidity can be clearly made when history unveils all the current ails of our society as a repeat instance; and yet we show we have learned nothing. In my estimation, that is full on “The Stupid®”, a dash of Spicoli, a pinch of short bus, a sprinkle of drool cup, baste with inflation, over high Jerry Springer … yeah, welcome to America.

  14. ReWrite

    “ear chaser” is my favorite.

    It is hard for me to label an entire group as stupid.

    “armed to the teeth,” i am not sure about that. Compared w/ European countries yes, but Americans probably don’t have enough weapons to take on the gov’t. I could be wrong about that… i think the bigger challenge for Americans (or even an outside force) is organizing a militia or guerrilla group w/out being detected.

    When i was in law school, me and two friends organized two groups… one was an anti-war group and the other was set up to fight INS Special Registration. We opened the group to everyone we could think of (which was mostly local schools and stuff). Three guys joined from some UMaryland Graduate School for post-Peace Corp people. These guys were super active in the beginning and came to all of our mtgs and then all three of them disappeared and stopped returning emails. I didn’t think anything of it, as we were juggling a lot of peoples’ schedules to monitor INS’ Special Registration. But then one of my co-organizers decided to look up the school these guys went to and it didn’t exist. He was convinced that these guys were FBI and wanted to see if we were terrorists. I think we seemed suspicious as i had recently represented an alleged terrorist, one of my co-sponsors was an immigrant from Pakistan (and even had to register); and the other was Palestinian. Another crazy thing is that at every protest we were video-taped by law enforcement.

    So i think it will be hard to organize w/out being stopped early on.

  15. You might want to check the facts on a few instances.

    NRA has access to gun registrations, and obviously, that is just the legal side. Those numbers alone are impressive. Add to that the governmental subjective accounts from ATF on the actual numbers of gun owners in this country, legal and illegal, and you get another picture.

    States for known militia activity, including K.K.K., Black Panthers, Aryan Brotherhood, Muslim Extremists, and Billy Boy’s House O’ 2nd Amendment Constitutional Rights Support, then a whole new dimension is added to this picture. That’s not inclusive of my subjective opinion that this won’t even cover it, as I happen to know a few people who have …. hrmmm …. “unconventional” arms and arms/weaponry/explosive knowledge, and have seen for myself first hand.

    Looking on the intarwebs:

    That took ten seconds.

    What exactly is your meaning with the “have to be a registered immigrant” and what is the grievance?

  16. ReWrite

    Back in 2002-2003 the INS (now the USCIS) required all immigrants from Arab and South Asian Countries (and N. Korea) to go to an INS office and “register” w/in a short time period. It was called “Special Registration” or the NSEERS program. Failure to register meant not only lose of immigration status and immediate deportation.

    It was pretty fucked up shit. The most unlucky people would go in and never come out (eventually get deported); the luckier ones would not only have to go in once, but have to comeback numerous times b/c the INS kept requesting more paperwork.

    In Baltimore, we tracked people as they went in and waited for them to come out. Most people had to come in three times before they were cleared of the process, everyone had everything in their wallets photocopied (including credit cards, family photos etc); some people didn’t come out (so we contacted their families and helped them arrange for an immigration atty). Basically we had them fill out a sheet before they went in and fill out another sheet when they came out. We used that info to tell registrants what to bring and what not to bring. We also went to local mosques and gave trainings and spread the word on the internet. Baltimore was considered the best place to get registered in the country according to CAIR and another organize (which ran an excellent website w/ stories from all of the INS offices); so we had people coming from VA & PA to Baltimore b/c VA was the worst in particular.

    Most INS agents, when they approached us and asked what we were doing, expressed resentment for Special Registration b/c it meant lots more work for them and they already have a huge backlog.

    The NSEERS program still exists and it is just an entry/exit thing. My understanding is that Special Registration, as i have explained above, ended in mid to late 2003.

    My grievance(s) is that blatant profiling, as all of the countries on the list were Muslim w/ the exception of N.Korea; the treatment of registrants was abusive; the US immigration system either needs to be completely civil or criminal. anyway, i could go on and on, but i am sure you don’t want to hear it.

  17. Ah, well then.

    First off, sorry, I have no problem with that for two reasons:

    1. We have too many people in this country as it is, and it is an empirical fact that the morons outbreed the educated by minimum 4 to 1.

    2. There is no reason to blindly accept any one for immigration, especially in this era. As stated, we don’t need any more people, and if you cannot certify your background, regardless of race/ethinicity/gender/religion/wtfever, you just plain don’t need to be here.

    CAIR is a known terrorist organisation, and not because our government says so, because independent analysts have factually supported the fact that it is founded by terrorists, collecting and exporting funds for terrorists and have worldwide ties to drug trafficking.

    Anyone from CAIR should be executed on sight.

    Realising your PC bent, I’ll concede on the profiling, but not on CAIR. I think every immigrant should be equally profiled, and illegals executed with malice.

  18. Okay cugini, what’s your take on this bit by Kit Bond.

    Personally, I’m calling Royal Flush of BS. I think the word “foreign” has just been prostituted to the cause, to the highest bidder. But, I’ve been wrong before, just has that smell about it … I don’t know, you guys read the legal manifestos … what’s the skinny?

  19. ReWrite

    FISA is a joke to begin with. First of all the FISA court is not an independent body or even part of the judiciary, it is part of the executive branch. So FISA pretty much always gives the green light.

    Next under FISA the gov’t can do the snooping and go to FISA after their done and get permission, so why something needs to be taken out of FISA is beyond me. Basically what they are asking for is a green light to monitor everything b/c they have no probable cause or actionable intelligence.

    FISA is supposed to be a Jack Bauer type thing- where a crisis arises and gov’t either gets the quick okay from the FISA court or gets retroactive permission from the FISA court. I think all of this is awful and unconstitutional.

    The new set up is even worse… the FISA check isn’t even necessary, in other words the gov’t can monitor communications (as infinite and broad as they want) willy-nilly, instead of responding intelligence.

    FISA needs to be overhauled in the opposite direction.

    By the way, I am watching this TV series from the UK called “The State Within” it is really good. The first two episodes seems like the show might just be a big European cliche against American, but it isn’t. I usually don’t waste my time w/ non-documentaries so check this one out!

  20. FISA is a joke to begin with. First of all the FISA court is not an independent body or even part of the judiciary, it is part of the executive branch. So FISA pretty much always gives the green light.

    Okay, then I wasn’t completely off base in my subjective opinions. It sounded like a tribune to be operated at the Administration’s whim.

    Next under FISA the gov’t can do the snooping and go to FISA after their done and get permission, so why something needs to be taken out of FISA is beyond me. Basically what they are asking for is a green light to monitor everything b/c they have no probable cause or actionable intelligence.

    Police state? What? I said nothing. Who? George W. Khrushchev?

    FISA is supposed to be a Jack Bauer type thing- where a crisis arises and gov’t either gets the quick okay from the FISA court or gets retroactive permission from the FISA court. I think all of this is awful and unconstitutional.

    We agree, and I’m surprised you aren’t more animated about this “legislation”. What concentration camps? That’s just a Federal Vacation Reserve.

    The new set up is even worse… the FISA check isn’t even necessary, in other words the gov’t can monitor communications (as infinite and broad as they want) willy-nilly, instead of responding intelligence.

    FISA needs to be overhauled in the opposite direction.

    Now we come back to the ineffable stupidity assertion. This is exactly what pisses me off with this whole “war on terra” BS. All these totalitarian, dictatorial pieces of legislation sliding through, virtually unnoticed, and where is the voice of the people? ::note stunned silence::

    Is this really going to “protect” us? There are over 100 mosques/Islamic groups operating freely inside this country right now. They are full of extremists preaching destruction of American, and instating Sharia Law … yet, I’m supposed to believe that having my privacy invaded and my liberties removed is somehow helpful to stopping “terrorists abroad”.

    Here’s another aspect. Through this medium, I know of two acquaintances who live in Northern States. Both of them have openly stated they walk across the border on a weekly basis ~ without detection. Yet, this sort of legislation is going to stop that action? I don’t think so. A sieve would look like state of the art technological border defense compared to what we have now.

    Yet, the government enacts these types of legislation to purportedly protect me and my family from the terrorists … who already live in my neighborhood, and yours …

    Still, the American populace is numbingly silent. No apologies cugino, that is nothing but stupidity. Unwillingness to learn, or to learn from known errors throughout history, has no other term more appropriate.

    FISA, like most of our government, needs to be taken out behind the wood shed, served a FMJ, burned to ashes, and used as fertilizer, no other purpose can be served.

  21. ReWrite

    “I’m surprised you aren’t more animated about this”

    True enough. I tried to fight these issues from 2001-2004, w/out much success.

    I don’t know if Americans are stupid or just diseased (Affluenza). Americans are concerned about consuming. They don’t believe that monitoring all of their communications affects them. They don’t believe locking up innocent citizens indefinitely w/out due process affects them. What they care about is being able to drive their super-SUVs to Starbucks and then to biggest shopping mall and purhcasing more stuff then they have space for in their homes (that is why the storage business is blowing up- by stock storage companies it is a win-win) and then buying a bigger SUV to store more purchased goods in; and then buying a bigger home (to store all of this crap in) using 100% financing and then waking up the next day and doing it all again. This is the American Dream and it is not sustainable.

    And the revolution/awakening won’t occur until they are unable to mass consume.

  22. According to the GOA’s CG and even Greenspan, it won’t be long, sustainability is always a myth, all processes are terminating, including the Universal one.

    I think Baudrillard needs to be required reading in this country, no one seems to get it.

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