Two days ago, Jane Mayer of the New Yorker posted the article Is Senator Ted Cruz Our New McCarthy? Mayer noted that Cruz had come under criticism as a result of the nature of his attacks on former Senator Chuck Hagel (R-NE), who is seeking confirmation as Secretary of Defense. For example, Mayer reported that fellow Senator John McCain (R-AZ):
rebuked Cruz for insinuating, without evidence, that Hagel may have collected speaking fees from North Korea.Mayer also described another speech that Cruz gave in 2010 in which he attacked President Barack Obama, implying that Obama was a Communist who wished to overthrow the government of the United States:
Cruz greeted the audience jovially, but soon launched an impassioned attack on President Obama, whom he described as “the most radical” President “ever to occupy the Oval Office.” (I was covering the conference and kept the notes.)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.”
Yesterday, in an interview with Madeleine Morgenstern of The Blaze in Ted Cruz Responds to ‘New McCarthy’ New Yorker Article: ‘Curious’ They Would ‘Dredge Up a 3-Year-Old Speech & Call it News’, a spokesperson for Senator Cruz stated that the Senator was referring to members of the Harvard faculty who adhered to the school of “critical legal studies.” The spokesperson said:
Regardless, Senator Cruz’s substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of ‘critical legal studies’ — a school of thought explicitly derived from Marxism – and they far outnumbered Republicans.
Senator Ted Cruz (R TX) equates “critical legal studies” with Communism and contends that this group of scholars advocates the violent overthrow of the government of the United States.
Cruz is wrong and his comments are defamatory.
First of all, I do not know of a single legal scholar, critical or otherwise, who supports the violent overthrow of the government of the United States. That would be a peculiar belief indeed for a lawyer or a judge, let alone a teacher of the law. If Senator Cruz does know of such criminals then the burden is on him to identify those people. If he cannot then he is a liar.
Second, “critical legal studies” is simply a school of legal philosophy that seeks to explain and critique the law from a sociological and political perspective. A strictly doctrinal legal scholar describes the law as it is. A critical legal scholar attempts to explain why the law is as it is, and may go further and assert how it ought to be. Any person who describes the law from a critical perspective may be said to be a “critical legal scholar.”
Third, many critical legal scholars believe that the law is so indeterminate and open-textured that judges often have the power to interpret the law in accordance with their own social or political beliefs. I do not agree with that notion – I think that the vast majority of cases are clearly controlled by existing law – but I do agree that hard cases exist, and that in interpreting the law in such cases judges must and should identify the values that they believe the law stands for. Reasonable people may disagree with critical legal scholars about the extent of indeterminacy in the law – not with its existence. Perceived indeterminacy in the law is matter of degree among all lawyers, judges, and legal scholars.
Fourth, virtually every lawyer, judge, and legal scholar has opinions about what the law should be. For example, adherents to the school of “law and economics” (whose foremost champion is the renowned Judge Richard Posner) believe that the law should be interpreted to maximize economic efficiency and the creation of wealth. Law and economics is sometimes described as the antithesis of critical legal scholarship, yet its members utilize precisely the same methods of analysis as critical legal scholars. Judge Posner does not pretend that the law is always unambiguous or that judges do not exercise discretion in the interpretation of the law. He knows that there are “hard cases” in the law, and when he has the opportunity he interprets the law in such a way as to maximize economic efficiency and the creation of wealth. Posner’s jurisprudence may be justly criticized on the ground that he seemingly cares not at all whose wealth is maximized by the law. Advocates for the poor and for oppressed minorities would argue that the law should be interpreted to more fairly distribute the wealth created by labor and capital; to dismantle traditional stereotypes such as racial supremacy or strict gender roles; and to increase opportunities for all. There is a potential confluence between “law and economics” and “critical legal studies” in the possibility that the elimination of racism, sexism, homophobia, and other artificial barriers to advancement will result in a happier and more prosperous society.
People may rationally disagree with the positions that individual legal scholars take, but these scholars are not Communists who are seeking to overthrow the government.
Senator Cruz’s characterizations of critical legal scholars are odious. Coupled with his unfounded smear campaign against former Senator Hagel, his remarks mean that he richly deserves his newly-earned reputation as a disciple of Joseph McCarthy.
Wilson Huhn has taught Constitutional Law for 29 years.