Paul L. Caron

Saturday, April 8, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 6)

Washington Post:  Stanford Should Work on Diversity, But Bad-Faith Arguments Don’t Help (Part 1), by Tim Rosenberger (Stanford 3L; President, Federalist Society; Vicar, University Lutheran Church (Palo Alto)):

Stanford Law (2022)In her April 5 Wednesday Opinion essay, Confessions from Stanford Law’s silent majority, my classmate Tess Winston referred to “far-right” students at Stanford Law School. Ms. Winston seemed to be attending a different law school than I do.

She asserted that there are a half-dozen far-right students in our class. After all my time here, I cannot name five other students who voted for Donald Trump, much less any who would be “far-right.” It’s hard to imagine that I, one of the only openly conservative students, would, as a gay man from Cleveland’s inner city, be embraced as far-right. ...

I ran for Federalist Society president on a platform of building a collaborative chapter that would work across the law school. Despite inviting only a slate of serious, uncontroversial speakers, we have found it impossible to get other student groups to join us in events or debates, including a talk on free speech with the former president of the American Civil Liberties Union. We invite professors to respond to or debate almost every speaker. Only one professor has been willing to do such a response this year. Our efforts at civility and balance have been consistently met with contempt and hostility. Stanford has a great deal of work to do in forming a faculty, administration and student body that reflect the diversity of American viewpoints.

Asserting that Stanford’s very small and very moderate right-of-center contingent is “far-right” is precisely the kind of irrational intolerance that erodes the fabric of our discourse.

Washington Post:  Stanford Should Work on Diversity, But Bad-Faith Arguments Don’t Help (Part 2), by Robert Doubek (University of Illinois):

Tess Winston’s April 5 Wednesday Opinion essay reminded me of an experience I had at Georgetown’s law school 50 years ago, after having served in Vietnam. Among the few opportunities to really learn how to function as a lawyer were legal “clinics,” in which students actually would appear in court. Having applied and interviewed for all, to my chagrin, I was rejected by all.

Years later, I was drinking with a friend of a friend, who happened to be a professor running one of the clinics. He confirmed that we Vietnam veterans were rejected outright as we all were presumed to be right-wing zealots who would use the clinic experience to become prosecutors.

Wall Street Journal, First, Depoliticize the Stanford Admissions Office:

The law dean is playing with Marquess of Queensberry rules against social revolutionaries.

In Employers Need to Put the Squeeze on Woke Intolerance, Gerard Baker was right to point out that Stanford diversity dean Tirien Steinbach’s clarification in your pages (Diversity and Free Speech Can Coexist at Stanford) is at best a case of “sorry, not sorry,” and at worst a doubling down on her hypothesis that freedom of speech might not be worth defending if feelings are hurt in the process.

Mr. Baker’s suggestion that employers look askance at job candidates who share Ms. Steinbach’s view (and are proud enough to post about it) is one solution. Another is to ask if the real problem is the college admissions officers who offer up their colleges and universities to these young political warriors. By giving priority to their favorite social causes over academic achievement, admissions officers have made clear to the students they accept that political activism is valued over scholarship.

Stanford Law Dean Jenny Martinez doesn’t get it (Stanford Law Rediscovers Free Speech) She’s playing with Marquess of Queensberry rules against social revolutionaries.

She hopes to redirect and re-educate the authoritarian cadres that have matriculated at her law school (and every law school in the country) with a brief program, a “mandatory half-day session . . . on the topic of freedom of speech and the norms of the legal profession.” Yet these students already had undergraduate degrees at prestigious universities and a variable time at her own law school. Does she really think they are so unformed intellectually that she can influence them to anything but contempt for the system that is so feckless in dealing with them?

Glenn Loury (Brown University), David Sacks (Stanford 1L), & Spencer Segal (Stanford 1L), Conservative Judge Shouted Down at Stanford:

ABA Journal Op-Ed:  Stanford Law's Free Speech Teachable Moments, by Stuart N. Brotman (University of Tennessee):

I am a lawyer, First Amendment scholar and an endowed journalism and electronic media enterprise and leadership professor at a major research university. Given these multiple professional identities, my thoughts on a recent headline-grabbing incident at Stanford Law School cannot be summarized by a pithy tweet, which is the coin of the realm in the social media world. ...

While this shout-down at Stanford Law provided a media-ready, dramatic and emotionally charged campus event, the media’s response to it similarly spun out of control. By now, the initial story has been written and circulated widely. But there needs to be greater attention in the media and legal communities, focusing on larger issues at play: Both public discourse and trust in the judiciary are suffering.

Stanford Law Dean Jenny S. Martinez wisely recognized that what happened at her esteemed institution provided a teachable moment. Her 10-page letter issued on March 22 to the Stanford Law community reflected well on both her as the school’s leader and on her understanding of legal free speech precedents and values. ...

The lessons from this event reach well beyond campus settings. In recent years, respect for the U.S. Supreme Court—and the federal judiciary as a whole—has experienced a steep decline among the public at large, according to Gallup, a well-respected national survey firm. ...

Judge Duncan reportedly used his smartphone to record the student protesters, leading one observer to note that he looked “more like a YouTuber storming the Capitol than a federal judge coming to speak.” He taunted the students by calling them “juvenile idiots,” noting that the “prisoners were now running the asylum.”

It’s highly unlikely that Judge Duncan would have acted or spoken this way while hearing any cases. His behavior at the event, even though provoked into angry name-calling, will not help the growing perception that federal judges are no longer neutral arbiters, but rather just another group of political combatants in a nation deeply divided into red and blue mindsets.

Perhaps Judge Duncan and his peers would be well advised to review Dean Martinez’s more generalized wisdom. “Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work,” Martinez wrote in her letter to the law school community.

“Lively, candid, civil and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty,” she wrote. “Observance of this duty matters most, not least, when we are convinced that others haven’t.”

Put simply, our faith in the rule of law may depend upon judges who are committed to meet this high standard at all times. As a lawyer, and as an American citizen who strongly supports our democratic institutions, I recognize how important it is to reverse the troubling trend of declining confidence in our judicial branch.

And in all my professional identities, I welcome more media coverage that helps foster further discussion about greater respect for free speech values on college campuses and supports judges in following the example of Stanford Law Dean Martinez—so they can better reflect their positions of leadership in the legal community and society at large.

Eric Segall (Georgia State), Federalist Society Judges Acting Badly:

Leonard Leo's picks for lower court judges during the Trump administration were overwhelmingly white and male (with a few Asians thrown in). Almost all of them were associated with the Federalist Society either in school, as lawyers, and/or as judges. Although Leo (via Trump) nominated some fine people (Judge Kevin Newsom of the 11th Circuit, for example), many of his selections have also proven to be, and predictably so, awful. These men have joined other Federalist Society-adjacent judges appointed by previous Presidents to fight the culture wars both on and off the bench in ways that tar the federal judiciary with charges of partisanship and, in some cases, outright and unnecessary cruelty. Here are just a few of their stories and then a few thoughts on why these judges are acting so badly. All of the judges discussed herein, whether chosen by Leo during the Trump years or by other Federalist Society-adjacent lawyers during previous Administrations, have Federalist Society ties. ...

if you're reading this blog it is likely you have heard about the recent controversy at Stanford Law School and Judge Stuart Kyle Duncan (a Leo/Trump nominee). Before becoming a judge, Duncan worked for the Beckett Fund for Religious Liberty litigating  numerous cases against LGBTQ+ and reproductive rights. No surprise therefore that in a case involving a transgender prisoner, Duncan refused to use the prisoner's preferred pronoun. Duncan claimed that respecting transgender people's gender identities "may well turn out to be more complex than at first it might appear" because of a "galaxy" of genders. What a surprise that groups supporting LGBTQ+ rights strongly opposed his confirmation and were obviously right to do so.

Stanford Law School's Federalist Society invited Duncan to give a talk on campus. Progressive students acted badly by disrupting the speech. Duncan could have tried many ways to diffuse the situation but instead he made it much worse by calling the students names, storming out, and going straight to the media to tell his sob story. Mark Joseph Stern described what happened:

Duncan came prepared, striding into the room with his camera out to film the event so he could “make a record” of their demonstration. After an administrator and a student leader quieted the protesters, the judge skipped his speech and moved directly to Q&A. He then insulted various students (“you are an appalling idiot,” the judge told one) while refusing to engage with their questions. After departing, the judge embarked upon a conservative media tour, declaring that the “coddled law students” behaved like “dogshit” and urging Stanford to discipline them.

Needless to say, Judge Duncan's obvious desire to turn his talk into a media circus is far more important and dangerous than a few law students disrupting a speech. It is a good thing Stanford's Dean apologized to Judge Duncan; otherwise I suspect Duncan would have gone all James Ho and called for a boycott by judges of hiring Stanford students as law clerks (actually Ho said on Friday that he and Judge Branch would boycott Stanford students despite the apology from the Dean). I also suspect either Judge Duncan or Judge Ho will be the opening act at next year's Federalist Society National Convention, and I would expect a few Pryorish remarks from either one about the Stanford students.

Stanford Daily, Judge Kyle Duncan’s Visit to Stanford and the Aftermath, Explained:

Stanford Law School (SLS) became the target of public scrutiny after Judge Kyle Duncan’s visit to SLS on Thursday, March 9 was continuously interrupted and cut short due to the heated interactions between Duncan, the student protesters and the SLS Associate Dean for Diversity, Equity and Inclusion Tirien Steinbach.

In a statement to the SLS community released on March 22 by SLS Dean Jenny Martinez, Martinez announced that all SLS students will take part in a mandatory half-day of training “on the topic of freedom of speech and the norms of the legal profession.” Martinez also wrote that Dean Steinbach is on leave.

The University did not respond to The Daily’s request to comment on whether or not Steinbach’s leave is voluntary.

Martinez’s letter comes after commentators from various American media outlets have expressed their own views of the event and protest. Some argued that Steinbach should be fired, others condemned the protesters’ actions and still others called Duncan’s reaction to the protesters a “tantrum.”

Duncan’s appearance on campus and the subsequent protests have become a deeply controversial topic in the weeks since the event.

The remainder of the article is a very detailed description of the timeline of the event and the post-event reactions at Stanford and around the country.


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