Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship

By Post, Robert | Constitutional Commentary, Winter 1994 | Go to article overview

Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship


Post, Robert, Constitutional Commentary


It is a pleasure to contribute to this tenth anniversary issue of Constitutional Commentary, which deserves great credit for its support of free-ranging scholarly reflection, unfenced by the razor wire of bluebook citations. In our profession we have great need for such spaces of informal dialogue and unconstrained deliberation.

It is in fact about our profession that I wish to meditate in this short essay, provoked by the painful and ill-fated nomination of Lani Guinier. I want to focus on a cavalier but wickedly penetrating remark of Senator Joseph Biden, the chair of the Senate Judiciary Committee that was to pass on Guinier's candidacy. After reading Guinier's scholarly articles, Biden said:

If she can come up here and explain herself, convince

people that what she wrote was just a lot of academic musing,

who knows? ... I suppose it's conceivable that she could be

confirmed. If she comes up here and says she believes in the

theories that she sets out in her articles and is going to pursue

them, not a shot.(1) Biden's comment candidly questions the social significance of writing that is avowedly "academic." It invites us to inquire into the nature of our vocation, to ask for whom and for what purpose we write.

Biden uses the adjective "academic" dismissively, evoking the genial condescension with which mainstream culture regarded intellectual "eggheads" in the 1950's: Academics are "theoretical," "out-of-touch," "impractical." Lost in abstraction, they cannot be entrusted with "real world" tasks. But of course anyone with any knowledge of Lani Guinier would know that none of these characterizations could be applied to her. She was a tough, real-world, hard-driving litigator; she remains an articulate, hard-edged, smart, and persistent scholar.

So Biden more probably meant his use of the word "academic" to apply not to Guinier personally, but to the genre in which her work appeared. He seems to have meant that law review articles as a form can be dismissed as merely "academic." We can read Biden as establishing an opposition between the abstract and impractical work of law professors who write for law reviews, and the real and practical work of Washington officials who engage in the project of law creation and enforcement.

The question I want to pursue is how we in the legal academy ought to regard this opposition.

At first, of course, the answer seems obvious. No self-respecting group of law professors could possibly accept an image of their work as fumbling and incompetent, relevant only to the theoretical and useless arcana of the law. But certainly there is at least one sense in which, I expect, most of us would accept Biden's opposition. The purpose of legal scholarship is the achievement of truth, whereas the purpose of the work of Washington officials is governance. And these two purposes, as Hannah Arendt has had occasion to remind us in terms that strongly echo Biden's remark, can be deeply oppositional:

The story of the conflict between truth and politics is an

old and complicated one, and nothing would be gained by simplification

or moral denunciation. Throughout history, the

truth-seekers and truthtellers have been aware of the risks of

their business; as long as they did not interfere with the course

of the world, they were covered with ridicule, but he who

forced his fellow-citizens to take him seriously by trying to set

them free from falsehood and illusion was in danger of his life:

"If they could lay hands on [such a] man ... they would kill

him," Plato says in the last sentence of the cave allegory.(2) Biden covers the law reviews with "ridicule," and by so doing reenacts an ancient tension.

Truth, from the perspective of power, can seem hopelessly naive and dangerously ingenuous. Power, from the perspective of truth, can seem irredeemably corrupt and unfounded. …

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