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The Chief Justice and Chemerinsky: Something is Wrong

Did the Chief Justice pressure Chancellor Michael Drake into withdrawing the offer that had already been accepted?
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Something is wrong with the story of the role played by California Supreme Court Chief Justice Ronald M. George in the firing of Erwin Chemerinsky as founding dean of the UCI law school. Did the Chief Justice pressure Chancellor Michael Drake into withdrawing the offer that had already been accepted? New facts have emerged today about how the Chief Justice was enlisted in the effort to fire Chemerinsky by a group of Orange County attorneys, after Chemerinsky had already signed a contract.

Chemerinsky, a law professor at Duke and prominent liberal, was rehired five days after his offer was withdrawn by UCI Chancellor Michael Drake -- the result of a firestorm of protest over academic freedom. The Chancellor has said no one had pressured him, but the LA Times reported last week that the Chief Justice had written a letter expressing his objections to an op-ed Chemerinsky had published in the Times on the death penalty appeal process in California. Chemerinsky then wrote in another LA Times op-ed, "If the justices sent a letter to UC Irvine with the goal of influencing the dean process, that is inappropriate."

Monday the LA Times reported a new version of the story: Chief Justice Ronald George was asked by "a UCI selection committee" to comment on Chemerinsky's qualifications to be law school dean. Several legal ethicists, including Stephen Gillers at NYU and Deborah Rhode, director of the Center on Ethics at the Stanford Law School, were quoted saying the Chief Justice's action was not unethical, because he was responding to an official request for his evaluation. If the Chief Justice had not been officially asked, his intervention might have been improper and perhaps even unethical.

There is a problem with what the Times called "George's version of what happened": the request for the Chief Justice's evaluation of the candidate was sent on Sept. 6. But the offer to Chemerinsky had already been made, on Sept. 4 -- the same day the Times published the Chemerinsky op-ed to which George objected. No search committee would be soliciting evaluations after an offer had been made; that's something that would have been done months before. Indeed a member of the search committee told me she knew nothing of any request to the Chief Justice. So something is terribly wrong with this story.

Here's the new part: the Chief Justice told Maura Dolan, who wrote the LA Times story, that he got a letter signed by four people identifying themselves as "UCI Donald Bren School of Law Volunteer Leadership" -- not the search committee, but rather a group of local attorneys the finalists for the position had met with when they visited the campus. Dolan told me that their letter said, "We are currently interviewing candidates," asked for his opinion, and concluded "Please feel free to contact any one of us." George responded by sending one of the signers, Tom Malcolm, a prominent Republican, a copy of the letter his office had sent to the LA Times objecting to Chemerinsky's op-ed. Malcolm gave that letter to Drake. (The Times published that letter on Sept. 21, titled "Death row inmates provided counsel," signed by Frederick K. Ohlrich, clerk of the state Supreme Court.) Others signing the "Volunteer Leadership" letter included attorneys Joe Dunn and Mark Robinson.

The Chief Justice told Dolan that the letter from the "Volunteer Leadership" group was dated Sept. 6. At that point it was untrue that the campus was "currently interviewing candidates" -- the interviews had been conducted months earlier. Perhaps by Sept. 6, they had heard of his anger over the Chemerinsky op-ed, and hoped he could change the Chancellor's mind. So the issue now becomes why this group of Orange County attorneys misled the Chief Justice; what prompted their letter; and what the Chancellor knew about their efforts.

The attorneys' role raises anew the issue of politics in the Chemerinsky case. Chemerinsky has argued for judicial review for detainees held at Guantanamo Bay, Cuba, and represented Valerie Plame, the CIA agent outed by the Bush White House. He's also spoken in favor of reform of the Los Angeles Police Department and against the state's "three strikes" law. It was widely assumed that the pressure on the Chancellor to fire him came from the right, but the chancellor has steadfastly denied that.

One other question: Did the Chief Justice tell UCI he opposed appointing Chemerinsky dean -- or did he simply express his objections to the op-ed? One California law school dean told me, "if the CJ [Chief Justice] were called by someone at UCI, the CJ would not have limited his response to the op-ed piece or other disagreements. I expect that he would have said that the university was making a bad appointment." But according to George, he did not write a letter evaluating Chemerinsky; he merely forwarded the letter to the editor disagreeing with Chemerinsky's op-ed. If that's true, it makes it all the more mysterious why the Chancellor went on to fire his new dean.

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