HH: It’s Hugh Hewitt with Erwin Chemerinsky, professor of law at Duke University Law School, soon to be out at the University of California, Irvine Law School as dean, and John Eastman, dean of my law school, Chapman University Law School. Dean and soon to be Dean, welcome to you both. Gentlemen, I want to start with a philosophical question and move to the specific. Erwin, if you were on the board of directors of an organization for a number of years, how much do you own of that organization’s efforts and advocacy?
EC: I’ve been on many boards of directors. I agree with some of what they do, and disagree with some of what they do. Now certainly, if I believe that they’re acting improperly, unethically, then I have a fiduciary duty to criticize it. But I don’t believe by being on a board of directors that I agree with every policy the organization takes. I agree with most, and I believe it’s an important organization. That’s why I serve.
HH: Now John Eastman, I also agree with that standard. You can’t be pinned for everything, but generally speaking, if you serve for a number of years, and the organization is controversial, do you own some of that organization’s legacy?
JE: Well, I think you do. I mean, I agree with Erwin that not everything. Sometimes, organizations will do something that not everybody agrees with. And you know, you’re always constantly in the position on the board, or even a staff member, staff attorney, what have you, deciding given the balance, is it 90/10, and I agree with the other 90%? Or is this one so off the charts that I can no longer have a relationship with them? And there are some issues that are so off the charts that people ought to resign because of the institution taking a stand on something. But there are others, you take on, sometimes, controversial cases because of the underlying principle, in part depends, doesn’t depend on whether the case is controversial or not. So you know, it’s a very tough question.
HH: Now Erwin, let’s go back and make it more specific. If you’re, for example, on the board of the ACLU, and this is still hypothetical, I’m not bringing up a board member of the ACLU, you know how controversial the ACLU is. Shouldn’t you be expected to be defending the ACLU’s position, taken litigation?
EC: I was a member of the board of directors of the ACLU of Southern California for 15 years. I am a member of the board of directors of the ACLU of North Carolina. I agree with most of their positions, but not all. For example, their position on campaign finance is much like yours and John’s, and I have consistently disagreed with the ACLU over this issue.
HH: Is it fair then, if you were to run for office, for me to get from you a detailed statement of which cases you agree with, and which cases you didn’t?
EC: Well, yes, except that even as a member of the board of directors, I can’t tell you that I follow every case that they file. I mean, I don’t think any member of the board of directors micromanages to that degree. I’ll go back to what I said before. My primary duty as a member of the board of directors is to make sure that the organization is acting ethically, properly within the law. If I don’t do that, I’m breaching my fiduciary duty. I’m responsible for overseeing the management. And at times, matters come to the board of directors for approval, but while I agree with most of the ACLU has done, there are certainly instances where I disagree. There have been votes that were taken during my years on the board where I lost, where I was in the minority.
HH: Now John Eastman, let’s get down to the issue at hand, which is the legacy of the Lawyers Committee for Civil Rights under the Law. They’re organized in different cities. Generally speaking, the organization’s brand, what do you associate it with?
JE: You know, they push the envelope on the left side of the political spectrum in a number of cases, by design. I mean, that’s their mission. I have disagreed with a lot of the positions they’ve taken over the years. I’ve disagreed with, for example, the kind of seek welfare first mentality of some of the cases they bring. They are fairly partisan, without being directly so. But you know, that’s their right.
HH: Erwin Chemerinsky, what’s your understanding of the reputation for the various Lawyers Committees for Civil Rights under the Law?
EC: Well, I’m very familiar with it. And having grown up in Chicago, having started my teaching career at DePaul, I’m particularly familiar with the one in Chicago. And I think that they’ve been an extremely important, and often very effective advocate, especially in the area of civil rights. And I can tick off things that I know the Lawyers Committee for Civil Rights in Chicago did that I think all of us would be proud of.
HH: Now Barack Obama was a member of their board, and that brings us to the issue of what does Barack Obama own of the Lawyers Committee for Civil Rights under the Law in Chicago. John Eastman, how ought we to approach the analysis of this?
JE: Well, you know, and there’s something else that we haven’t addressed yet, and Erwin talked about the position of the board with the fiduciary obligation, making sure that the management of the entity is correct. But when you commit your time to an entity that is an advocate in causes, then you tend to sign onto the causes as well. And where I agree with Erwin is that that doesn’t mean a uniformity of agreement. There will be disagreements within the institution, as there are in any. But you don’t put your kind of time into an institution like this, unless you generally agree with the direction that their cause efforts are taking. And so I think it’s fair to look at generally the causes they get behind, and say that somebody like Barack Obama wouldn’t be on the board if he disagreed with the general direction of the causes they support.
HH: Is that fair, Erwin?
EC: Yeah, what’s astounding to me is you’re painting a fairly mainstream, a very mainstream organization into a radical organization. It’s not. The Lawyers Committee in Chicago has been instrumental in suing over discrimination on the Chicago Police force, housing discrimination. It was key with regard to some schools cases in Chicago. But I think if you’re going to tar this organization and Barack Obama as a radical organization, you’re wrong and unfair.
HH: I haven’t said radical, although I believe it is radical. But I’ll now go to for example. They filed an amicus brief in NOW V. Scheidler, which…
EC: Which I argued in the Supreme Court.
HH: I know. And it was a radical interpretation of RICO being applied to people exercising their 1st Amendment rights outside of abortion clinics. Now we can argue about the substance of that, but that was the far left edge of abortion advocacy, wasn’t it, Erwin?
EC: I could not disagree more. What NOW V. Scheidler was about was the far reach of the far right of anti-abortion protests, who were engaged in violent obstruction of reproductive health care clinics. And what you’ve got to remember here is that this is a case that went to the Supreme Court three different times, once being affirmed by the Supreme Court, twice being reversed. And that means in both instances, the 7th Circuit and the district court had ruled that way. But I could not disagree more with your characterization that it’s a far left case. I think it was stopping the far right, the most violent, radical part of abortion protestors.
HH: John Eastman?
JE: Yeah, no, I mean, they were trying to use civil RICO, which is a statute that was designed to work against the Mob to stop protest of abortion. It was an unbelievably expansive use of RICO. The Supreme Court shot it down three different times. And it is the far end…and the Supreme Court’s vote on these were not close calls, if I recall. So it was out there.
EC: John, you’re wrong on one thing. The first time, the Supreme Court ruled in favor of NOW.
HH: And so we’re going to examine this in weeks ahead, but we only have 30 seconds. Erwin, would you at least admit that they have been on the far left edge of arguing for race-conscious remedies in many situations?
EC: I absolutely would disagree. What they’ve been fighting against is race discrimination, not arguing for preferences. They were fighting discrimination on the Chicago Police Department. They were fighting discrimination in housing in Chicago, and a leader for that. This is one of the most unfair things I’ve heard you say, because they weren’t a radical organization. They were a mainstream civil rights organization.
HH: John Eastman?
JE: Yeah, you know, I want to go back to the 1990 Rochon V. FBI case. They tried to get Ed Meese and Brad Reynolds and the entire civil rights division disqualified from participating in a grand jury. That’s pretty far out there.
HH: We’ll continue the conversation next week with the Smart Guys.
End of interview.