Wednesday, January 19, 2022

The Winner of My Highly Unscientific Twitter Poll for Most Embarrassing Yale Law School Alum

 by Michael C. Dorf

No, that was not one of those clickbait headlines that requires you to scroll and click through dozens of pages and see hundreds of ads before you learn the answer to the teaser question (e.g., "Can you guess which Hollywood stars used this mustard-seed paste instead of plastic surgery?"). The winner of my Twitter poll question--which asked readers to "Vote for the alum who most embarrasses Yale Law School"--is Harvard's Felix Frankfurter Professor of Law, Emeritus, Alan Dershowitz. Please join me in congratulating the eminent scholar/lawyer/author who famously kept his underwear on when receiving a massage at Jeffrey Epstein's residence. Perhaps with this prize in hand, Professor Dershowitz's erstwhile friends on Martha's Vineyard won't shun him next summer.

Now for a few quasi-serious reflections about my silly poll, which I kept open for three days last week and into the weekend. Here are the full final results: 








I was inspired to create this poll after learning that Stewart Rhodes, the Oath Keepers founder who was recently indicted for seditious conspiracy for his role in the January 6 insurrection, is a graduate of Yale Law School. Despite his prominent role in far-right/militia activism, I found surprisingly little information about Rhodes online. I learned that he was an army paratrooper before going to law school, a staffer for libertarian congressman Ron Paul, and a Montana lawyer who was disbarred by that state's supreme court. But that's about it for backstory. There isn't even a Wikipedia page for Rhodes. (Entering his full name--Elmer Stewart Rhodes--redirects to the Oathkeepers entry.)

Some deep Googling led me to a YLS publication indicating that Rhodes was in the class of 2004 and won a prize for "the best paper concerning the Bill of Rights." The paper is called Solving the Puzzle of "Enemy Combatant" Status. Professor Owen Fiss is listed as the advisor. The paper is 94 pages long and highly critical of the Bush administration's policy of subjecting enemy combatants to detention without trial or recourse to civilian courts. I don't know whether Rhodes sought to publish the paper, but it does not appear in a law journal. It was self-published online here. I didn't read the whole thing, but it looks like a fairly standard work of legal scholarship with a strongly civil libertarian bent. Perhaps a deeper dive would provide hints that the author would later attempt to overthrow the U.S. government, but I doubt it. If there are such hints, Professor Fiss obviously missed them.

Intrigued by the mystery of Rhodes and his journey but having reached something of a dead end, I started to wonder whether he posed a public relations problem for Yale Law School. Certainly the repeated references to Rhodes as a YLS graduate in the news stories would test the limits of the adage that there's no such thing as bad publicity. At the same time, however, the conduct for which Rhodes has been indicted seems to have no real connection to the skills he likely acquired at YLS. Unabomber Ted Kaczynski's crimes seem more connected to what he likely learned at Harvard (as an undergraduate) and the University of Michigan (where he earned his doctorate) than anything Rhodes learned at Yale Law School. Intriguingly, Rhodes practiced law in Big Arm, Montana, which appears to be less than a three-hour drive from the site of Kaczynski's cabin outside Lincoln, Montana. But I digress.

To get a sense of the scope of the PR problem Rhodes must pose for YLS, I decided to poll about him as well as three prominent graduates who are most famous (or notorious) for their endeavors in the law.

a) Putting Dershowitz on the list was easy. He is practically a caricature of the lawyer-as-hired-gun model of zealous advocacy. Dershowitz seems to take special pride in defending people whose alleged conduct he claims to disapprove--including, especially, Donald Trump.

Some people who dislike Dershowitz probably do so because they disagree with his extreme conception of the lawyer as zealous advocate, but that view has enough support--especially among my lawyer-skewed and liberal-skewed Twitter followers--that it likely doesn't account for Dershowitz's "victory" in my poll. What does? Partly that Dershowitz so clearly craves the spotlight that he is willing to say fairly outrageous things simply so people pay attention. Charismatic egomaniacs attract loyal supporters but also deep disdain.

Beyond the cringe-inducing publicity seeking, Dershowitz inspires disdain because his "I'm just a lawyer" bit often rings hollow. There is, in his career-long oeuvre, a tendency to represent men who behaved terribly towards women (e.g., Claus von Bulow, O.J. Simpson, Mike Tyson, Jeffrey Epstein, Donald Trump) that suggests at least a possibility of misogyny. The "underpants" video I linked at the top of this essay includes Dershowitz repeatedly stating that the woman whose accusation he was denying lacked credibility because she was a prostitute. Lovely.

I could go on, but it strikes me that Dershowitz owes his victory to the fact that he seems to proudly personify some of the worst stereotypes of lawyers. It makes sense that my poll respondents would think he thus embarrasses his alma mater. Perhaps the saving grace for Yale is that most people associate Dershowitz more closely with Harvard.

b) I included Bill Clinton on the ballot because, like Rhodes, he was disbarred based on his conduct and statements during the Starr investigation of his relationship with Monica Lewinsky. Clinton's "it depends on what the meaning of the word 'is' is" was classic lawyerly hairsplitting of just the sort that brings disrepute to lawyers. I also included Clinton to give my poll a non-partisan feel. I expected him to get more votes than he did, especially as his stock has fallen considerably since leaving office. Yes, Clinton was a popular president, but the economic boom of the 1990s was built in substantial part on policies that led to the economic crash of 2008, Clinton's support for mass incarceration, welfare reform, and other center-right policies are out of step with the progressive wing of today's Democratic Party (who make up much of my Twitter following), and re-examining his conduct after the me-too movement, it's hard not to be disgusted. Clinton's distant last-place showing in the poll is thus surprising or perhaps a reflection of the strength of the competition.

c) Choosing a Supreme Court Justice was tricky. In light of the shocking revelation that, uniquely among the Court's members, Justice Gorsuch refused to mask up despite a request from the Chief Justice, who was concerned about Justice Sotomayor's vulnerability as a diabetic, Gorsuch wins the prize for the current Justice who most embarrasses the human species, but he went to Harvard, not Yale, for law school. Thus, he wasn't eligible for my poll.

Four current Justices--Thomas, Alito, Sotomayor, and Kavanaugh--went to Yale. I didn't give serious consideration to putting Justice Sotomayor on my poll. She's not perfect, but since the passing of Justice Ginsburg, Sotomayor is the closest thing to a conscience on this Court. I could see how people might disagree with her on any number of issues or cases, but I couldn't imagine my Twitter followers thinking that she embarrasses Yale Law School.

In Twitter comments, a number of people suggested that I should have included Justices Thomas and/or Kavanaugh. However, the free polling function on Twitter allows a maximum of four choices, and I concluded that I wanted to include only one Supreme Court Justice. I share the view that the performances of then-Judges Thomas and (especially) Kavanaugh at their respective confirmation hearings were embarrassing. Even more so ought to have been the underlying conduct that Anita Hill and Christine Blasey Ford respectively made credible allegations regarding. I nonetheless chose Justice Alito because I wanted to focus poll responders on conduct as a Justice. Votes for Thomas or Kavanaugh would have been skewed by reactions to their confirmation hearings.

Now on the other side of that question, I fully acknowledge that one can challenge my notion that the confirmation events skew the results, as opposed to fairly influence the results. After all, my goal was to ask who most embarrasses Yale Law School -- for whatever reason. So maybe if I ran the poll again but substituted Justices Thomas and Kavanaugh for Bill Clinton and Justice Alito, one of them might edge out Dershowitz.

In any event, the reason I included Justice Alito was my sense that, of late, he, more than any other Justice, embodies right-wing grievance politics on the Court. As Adam Serwer wrote insightfully in The Atlantic, to an important extent all of the conservative Justices (with the notable exception of Chief Justice Roberts) have lately been echoing FoxNews talking points, albeit in a more intellectual style. However, Justice Alito seems to have gotten there first and seems most passionate about it.

Recall Justice Alito's whinging dissent in the marriage equality case in 2015, in which he complained that in light of the Court's decision he would find it difficult to continue espousing bigoted views without being called a bigot: "I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools." Or think of Alito's repeated worrying that his politicized views will be treated as political by, you know, the enemy of the People.

Consider, for example, Justice Alito's 2020 Federalist Society speech, in which he described COVID-19 public health measures as the most "severe, extensive, and prolonged" restrictions on liberty in the nation's history but also suggested that his statements would be "twisted or misunderstood" by those who happened to observe how, you know, he votes to overturn just about all such restrictions that he sees at the Court. Or how two weeks ago, during the oral argument in the OSHA vaccine case, Justice Alito prefaced a question  by lamenting "I'm sure I'll be misunderstood" to be an anti-vaxxer when the question then suggested that the small risk from COVID-19 vaccines and indeed all vaccines means that OSHA lacks authority to impose a vaccine mandate. Why would he be misunderstood in each of these and other setting? Presumably because his comments would be twisted and taken out of context by the lamestream media and fake news. Simply put, I included Justice Alito on the ballot because he's the closest thing to a thinking man's Donald Trump that one can find on the current Supreme Court.

And judging by Justice Alito's second-place showing, I correctly predicted how my Twitter followers would react. Sure, Dershowitz trounced Alito by a 20-point margin for the grand prize, but with nearly 3 in 10 voters choosing Alito, he comfortably defeated third-place finisher Rhodes by 17 points and earned more than five times the votes of Clinton. So kudos to Justice Alito: without a disbarment, criminal sedition charge, or impeachment to his credit, he outshone two credible opponents. There's no shame in coming in second to Dershowitz in a most-embarrassing alum contest.