Rhetoric and Outrage

Leiter's original anger was directed against four prominent professors (Cass Sunstein, Mark Tushnet, Jack Rakove, and Michael Gerhardt) who had attacked Ralph Nader's argument that George W. Bush should be impeached. Leiter then concluded his posting with the following"somewhat tangential observation":

[I]n every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different. This is one reason I should probably abandon attempts to evaluate law schools in terms of scholarly caliber.

It was this paragraph, and in particular the Nazi comparison, that generated Non-Volokh's comments. Non-Volokh, quite properly, noted Leiter's own faulty analysis, finding"the idea that American academics at large are too afraid to criticize the Bush Administration to be quite laughable." Leiter, after expressing doubts about non-Volokh's ability to read, responded that he had never compared contemporary US to Nazi Germany, nor had he focused his comments on academia as a whole, but merely on"preeminent academic figures." While it's not entirely clear how Leiter has defined"preeminent academic figures," at most campuses, a resolution stating,"Resolved: George W. Bush should be impeached," probably would pass even among senior faculty. For the purposes of his argument, Leiter seems to contend that"preeminent academic figures" are those preeminent figures who disagree with him.

The issue here, however, is Leiter's reaction. Indeed, as he points out, academics displayed cowardice both in Nazi Germany and in the US during the high point of the McCarthy era. How, in any way, is that observation relevant, even in a"somewhat tangential" fashion, to a debate among leading constitutional scholars about whether a motion of impeachment against George W. Bush has merit? And why is disagreeing with Leiter's interpretation evidence of" cowardice," rather than a good-faith intellectual disagreement? It was Leiter--not non-Volokh--who elected to argue his case in an inflammatory manner. It strikes me as peculiar to frame rhetoric in such a way that will deliberately inflame opinion and then to express"outrage" when opinion is subsequently inflamed.

Now, onto my"somewhat tangential" point--with the tangent being the intellectual variety in the academy. Today's statement from prominent academic organizations on"academic rights and responsibilities" is admirable in every respect. But the question, of course, remains how such rhetoric is implemented into policy. That one of the statement's signatories is the AAC&U gives me considerable pause.

Update, 4.41pm: Brian Leiter has E-mailed to state,"Your posting, which purports to be about my dispute with Mr. Non-Volokh contains a number of errors, which, as an historian, you will no doubt want to correct for your readers." His original posting on the impeachment issue is here; my apologies for not posting the link previously.

Update, 8.19pm: Brian Leiter has emailed, asking me to list the four specific items of disagreement with my posting, to wit:

1.) While Tushnet opposed impeachment, he did not attack Nader's argument;

2+3.) Prof. Leiter reiterates that (a) his initial posting referred only to"leading academics," and (b) argues that he has defined preeminent academics more precisely than I argue. I never claimed otherwise on (a); on (b) readers can be the judge. It doesn't affect my principal point, namely, that at most campuses, a resolution stating,"Resolved: George W. Bush should be impeached," probably would pass even among preeminent academics.

4.) Prof. Leiter says that"disagreement with me is irrelevant to the question of cowardice," and argues that"it might be interesting if you have something of substance to say about the actual arguments that were at issue in this dispute. Your opinions about matters of rhetoric, based as they are on some rather careless misrepresentations, are of less value." I'm disappointed that Prof. Leiter didn't find my opinions of value on this issue; as I said in the opening, my interest in this particular matter wasn't over the impeachment issue at all, but instead over the question of rhetoric and response--namely, that people who use inflammatory rhetoric and/or historical analogies shouldn't be surprised when that rhetoric triggers a strong response, as occurred in this case, even when that response was focused not on the substance of the post but on an item that Leiter himself deemed"somewhat tangential."