an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Did Drake Fire Chemerinsky? He Still Won't Say
Today UC Irvine Chancellor Michael Drake used the pages of the LA Times to defend his decision to fire Erwin Chemerinsky from the deanship of the new UC Irvine law school a week after he had hired him. The goal was to rebut reports that Drake fired Chemerinsky because he feared that conservative donors would object to-- and the regents would not vote for-- a well-known liberal legal scholar as head of the law school.
And what did Michael Drake give as the reason for the firing, a reason, which, he insists, had nothing to do with Chemerinsky's politics?
Let me set the record straight. I made a management decision -- not an ideological or political one -- to rescind the offer to Professor Chemerinsky. The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents. It was a culmination of discussions -- with many people over a period of time -- that convinced me that Professor Chemerinsky and I would not be able to partner effectively to build a world-class law school at UC Irvine. That is my overarching priority.
And what were the elements of this "management decision"? What in particular did Drake and Chemerinsky disagree about? Drake won't tell us. The most likely reason he won't tell us is that there were no such disagreements. When Drake says that "Professor Chemerinsky and I would not be able to partner effectively" he means that he feared that someone else would not let them partner effectively because they had strong objections to Chemerinsky's being dean. But what those objections were, once again Drake will not tell us.
The reason he will not tell us is that he is trying to avoid admitting facts that would make him legally liable on even more grounds than he already is.
The Washington Post story suggests the hint of a reason: "Chemerinsky's accessibility to the media made him uneasy "because my feeling was, if we had a problem -- as the last couple of days show -- that it would be huge."" But it is hard to believe that Drake was simply unaware before he hired Chemerinsky that Chemerinsky often appeared on the media and regularly took strongly liberal and controversial stands. Indeed, Chemerinsky's prominence in public debates was probably one of the reasons why he came to the university's attention in the first place.
Perhaps Drake is suggesting that he obtained a firm promise from Chemerinsky not to be as outspoken on issues of the day once he accepted the deanship, and Chemerinsky broke that promise. But if that were the case, Drake could have said so in his L.A. Times piece. He did not.
Nothing Drake says sheds much light on why it would be reasonable for him to act as he did. Indeed, he only creates greater suspicion that the reasons for the firing were illegal, unethical, and dishonest. He is trying to save his own job by suggesting that there is something wrong with the man he fired, without giving any details or any way for Chemerinsky to defend himself from these unspoken charges.
This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself. Posted
by JB [link]
Whoa. Too far, too fast.
Advocate Chemerinsky; advocate his rehire; advocate release of the facts but stop there.
But it is hard to believe that Drake was simply unaware before he hired Chemerinsky that Chemerinsky often appeared on the media and regularly took strongly liberal and controversial stands.
It may be hard to believe, but it most certainly could be true. If Drake is a full fledged wingnut, it's possible that he doesn't watch the Communist News Network or the liberally biased MSM. He might not read any liberal publications at all. It is possible.
The fact that he has mastered the art of shamefully lying his ass off (as your post notes) demonstrates that at least one element of wingnuttery is established.
I think I know the appropriate punishment for Drake. He should be forced to hire John Yoo as his new law dean. However, the interests of UC Irvine would be best served at this point by hiring a new chancellor.