Tuesday, December 10, 2019

The Not-All-That-Blurry Lines of Public Intellectualism

by Neil H. Buchanan

In my most recent Dorf on Law column, I wrote that my former George Washington Law School colleague Jonathan Turley "is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV."  I admit that this was rather rough treatment, and it became even more so when I ended the column by saying that although Turley is not apparently in favor of the evils of Trumpism, he is willing to do things that further those evils because Turley elevates his own vanity above other values.

This kind of bare-knuckled assessment should, of course, at least cause the accuser (me) to pause and ask whether pointing the finger at an egomaniac is the classic case of having three fingers pointed back at himself.  (Aside: Is that a mixed metaphor, even though it is all about fingers?  Never mind.)  Yesterday's Dorf on Law column by Professor Eric Segall was much more kind than that, but Professor Dorf's comment on that column raised this broader question not only about me but about himself.  After all, this blog is its own form of showing off what the writers believe to be their worthy insights, and
"[e]ach of us wrestles with how far to venture beyond our respective core expertises and reciting 'just the law' in speaking to the public. Those of us who write for this blog have a more restrictive view of our role than Prof Turley has of his role, but there are many others in our profession who have a still more restrictive view than we do and would thus regard us as media hounds (or worse)."
To be very clear, I do not feel that either Professor Segall or Professor Dorf "called me out" in any way.  Instead, I took their comments as an opportunity to call myself on the carpet and ask what exactly I think that I am doing via the public intellectual activities that take up significant amounts of my time.

So as not to bury the lead, I will state up front that although I agree that the lines between acceptable and unacceptable behavior are not always clear, there is much more than a you-know-it-when-you-see-it inquiry when thinking about public intellectualism.

Professor Segall helpfully runs through the various activities that many American university professors pursue outside of their standard teaching/research/service job requirements.  He notes, for example, that law professors have been submitting many more amicus briefs in recent years than had previously been the norm, and he expresses understandable reservations about the practice of professors simply signing on to briefs that others have written.  Like him, I have done that in the past.  Unlike him, I have not concluded that this is something that I should discontinue; but that is not my focus today.

The two major areas of non-traditional professorial activity that I want to discuss here are testifying before Congress and seeking out (or at least agreeing to participate in) media contacts as a quotable source.  Unsurprisingly, I will use my own experiences to explore these matters.

I have testified only once in front of a congressional committee.  When I was being recruited to join the GW Law faculty in 2006, my colleagues-to-be emphasized the many advantages available to a tax law scholar who works in Washington, including proximity to tax policymakers.  Sure enough, within only about a year, I was invited to be the Democrats' witness at a House Ways & Means Committee hearing.  (I think the hearing's nominal subject matter was tax simplification, but that almost does not matter.)  It was an underwhelming, though interesting, experience.

It was interesting in the sense that I suspect that, say, bungee jumping is interesting.  That is, unless one has done it, there is simply no way to know what it is like.  Some people would not want to do either, some love the experiences so much that they want to do them again and again, and some simply say, "Well, now I know.  No need to do that again."

What is immediately obvious about public hearings in Congress is that they simply do not matter.  Even beyond impeachment and high-profile matters like the Kavanaugh nomination on which everyone is obviously dug in (or, like Senator Susan Collins, finally reveal that nothing could change their votes after pretending otherwise), congressional hearings are simply opportunities for both parties to parade their experts in front of cameras and for politicians to try to sound clever.   Shortly after the excitement from my hearing was over, I thought, "Well, that was stupid and a waste of everyone's time" -- even though the process itself was somewhat engaging and certainly memorable.

I wish that I could say that I never tried to testify again, but that is simply not true.  I think that my reason for trying again, however, will help to clarify what is at stake.

During the endless years from 2011 through 2016 in which Republicans repeatedly used the debt ceiling statute to hold the global economy hostage in an effort to try to extort policy concessions from President Obama, Professor Dorf and I were surprised to find ourselves to be the only scholars developing a serious understanding of the constitutional aspects of the debt ceiling law and of a presidents' options and obligations when Congress uses that law opportunistically.  I say this descriptively and not boastfully, because we were surprised every step of the way that no such body of scholarship already existed and that no one was concurrently doing any serious work (agreeing or disagreeing with us) on the topic.

This meant that Professor Dorf and I were the two people available to provide actual expertise on a complicated legal subject -- a subject that, moreover, was of the utmost immediate political and real-world import.  Because we both have former students who work for Congress, and because we have both testified there, we reached out to various people to see whether we could present our analysis and conclusions to the relevant officeholders.  This seemed particularly important in the context of a political debate in which everyone on both sides was making simply false assumptions and statements.

Tellingly, neither of us were ever invited to testify about the debt ceiling.  Why not?  Basically, we were told (usually indirectly, but nonetheless unmistakably) that nobody on either side liked our conclusion.  Moreover, there were already people who were willing to testify who would say things that each party's supporters wanted to hear.

In short, this was the other side of the coin that I had experienced before.  When one does testify, nothing changes; and when one does not testify, it is (at least in this case) because no one wants anything to change.  If one were not already cynical, that would be more than enough to make anyone weep for our republic.

Does this mean that no one should have testified as a legal scholar at the House Judiciary Committee hearing last week on impeachment?  Of course not.  Three highly qualified legal experts testified carefully and dispassionately about the Constitution, the facts of the case, and the glaringly obvious conclusions.  (One scholar chose to give political advice and to mischaracterize the case.)  Even though that did not change any Republicans' minds, it was still an act of public service for Professors Feldman, Gerhardt, and Karlan to stand up for the rule of law.

So even though the exercise is often futile in the immediate sense, being a public intellectual often involves simply making sure that the best analysis has been stated clearly for the public's benefit.

Which brings me to the question about being a media hound.  Throughout my career as an academic, and in particularly during those years of debt ceiling standoffs, I have given many media interviews, both print and on-air.  Again, after the initial bungee-thrill of having gone through a new experience, it is enormously deflating to realize just how little any of this matters.  Most of the interviewers are frankly incapable of understanding explanations that experts dumb down to the undergraduate level (or lower), and again, no one seems to be listening, anyway.

Most importantly, one might ask whether and when a professor should decline an interview.  After all, I essentially accused Turley and Dershowitz of never having seen a camera that they would not eagerly throw themselves in front of; and although we cannot know whether they have ever turned down an invitation to stare into a lens and bloviate, their ubiquity suggests that their only "no" answers are reserved for lower-prestige publications when times are busy.

By contrast, most of the professors I know have turned down interview requests for very good reasons.  I frequently say no to requests to speak about issues on which I am not an expert, which confuses reporters, because my being a Tax Professor in their minds seems to mean that I must know everything about taxes -- a preposterous expectation that some professors are all too willing to feed and exploit.  In addition, there are times when I am simply too cynical to bother with the whole process.

In 2012, I wrote a Dorf on Law column in which I described a particularly silly offer from a broadcast network to stand on the steps of the Supreme Court and speed-read what is now known as NFIB v. Sebelius as soon as it was handed down, providing verbal expert commentary on the fly.  I said no, emphatically, even though the producer told me (and I knew that she was right) that it would be easy to find some other legal expert who would eagerly do so.

The point is that there are situations in which a professor would feel comfortable providing expert commentary, but it depends on a number of factors beyond merely the subject matter: format, time to respond, and so on.  Doing a good job explaining a complicated Supreme Court opinion seems like a public service that could fit comfortably within any legal scholar's notion of her or his job.  Shouting best-guess conclusions at a camera, however, should be comfortably on the other side of the line of acceptability.

Complicating matters further is the unavoidable fact that universities affirmatively want their professors to be "in the media."  At least at research universities, not just the overall institution but its sub-units -- the law school, the arts and sciences faculty, the medical school, and so on -- almost all have permanent PR staff whose job it is to get the school's experts quoted and published in the press and on television.

Indeed, I feel some additional obligation to act as a public intellectual now that I have been put on an endowed chair at the University of Florida, because (although no one ever said as much) I feel the keen sense that this is part of what I was expected to bring to my new school as a scholar.

Certainly, my non-law review writing here on Dorf on Law and on Verdict (and sometimes elsewhere) is a big part of what has become my public reputation.  Yes, I enjoy doing it, and it is thus win-win for me and my university -- even though there are plenty of stakeholders in my new home state who disagree with what I write.  (Indeed, the whole point of tenure is to create a group of experts who can piss people off without losing their jobs.)  This also has the distinct advantage of being a format that I can control, where I decide what to write about, how long each piece should be, and so on.

So Professor Dorf is right that there are those who could point at us and call us media hounds (or worse), because we quite literally put ourselves into the public media maelstrom multiple times per week.  We have drawn lines where we would stop feeling comfortable, and other than the occasional moment of explicit (and healthy) self-reflection like this one, I know that I have no worries that this is "too much."  Not even close.

Again, these thoughts are occasioned not by the sense that either Professor Segall or Professor Dorf necessarily disagrees with me about any of the particulars.  It is always, however, often a good idea to stop and ask: "What am I doing?  Should I change?"  Maybe the world does not need to know what I think two or three times each week, and maybe it does not matter when I share what I think.  But if professors are clear about their expertise and write/speak clearly and honestly, it seems clear to me that this is very much part of our jobs as tenured scholars.