Pamela Paul on the Stanford Law School debacle

March 30, 2023 • 1:00 pm

Pamela Paul, former editor of the NY Times Sunday Book Review, and a refreshing addition to the increasingly antiwoke contingent of Times writers, weighs in on the deplatforming of conservative judge Kyle Duncan at Stanford Law School. (His speech apparently didn’t contain material that ignited the protests; rather, the protestors just didn’t like his conservative legal views and rulings, and he never finished his remarks.)

Paul reiterates what many have said about allowing “offensive” speakers to have their say, most importantly that you might learn something from the speaker, or at least be able to sharpen your own arguments in a reasoned and civil Q&A session, which of course didn’t occur at Stanford.  But she does have two interesting anecdotes and, as usual, makes her point very well.

Click to read:

All quotes from her article are indented.

Anecdote 1. 

On April 8, 1991, when I was a sophomore at Brown University, Supreme Court Justice Antonin Scalia came to campus to speak. Conservatives allegedly existed at Brown, but the school was as true to its left-leaning reputation then as it is now. This was where Amy Carter, the daughter of the former president, got in trouble for protesting apartheid, where a longhaired John F. Kennedy Jr. was also an anti-apartheid activist, where the most popular campus newspaper comic strip featured a character named P.C. Person.

We were right about everything. We knew our enemy and we hated him, whether it was the former segregationist Strom Thurmond or the bigoted Jesse Helms, both somehow in Congress, or the pugnacious Senate minority leader Bob Dole. Students regularly protested in favor of abortion access and need-blind admissions.

That April evening of Scalia’s talk, I lined up with my anti-Helms T-shirt on. I barely made it into a back row of the packed auditorium, where I awaited what would surely be a triumphant Q. and A. session. Once Scalia finished and we the righteous had a chance to speak truth to the evil one, we would rip apart his so-called originalism, his hypocrisies, his imperiousness. We were champing at the bit to have our say.

And then he wiped the floor with us. In answer to our indignant questions, he calmly cited rebutting cases. We fulminated and he reasoned, and when we seethed he lobbed back with charm. Within the hermetic bubble of my liberal upbringing and education, it had never occurred to me that even when finally presented with The Truth, someone from the other side could prevail. I’d been certain we would humiliate him. Instead, I left humbled.

The lesson:  But the protesters themselves suffered the greatest loss. Unleashing on Duncan may have felt good in the way we Brown students felt good asking our “tough” questions of Scalia. But whereas we got to hear the answers, the Stanford Law School students did not. It isn’t enough to challenge someone unless you’re willing to be challenged back. Scalia’s answers may not have made us feel especially good, emotionally or intellectually. They did, however, teach us the value of listening, and motivate us to be smarter.

Anecdote 2. 

As some readers of The Times may be aware, nearly 25 years ago I was briefly married to another columnist here, Bret Stephens. When my friends and family members had learned I was dating a conservative — let alone thinking of marrying one — they were stunned. How could an intensely partisan Democrat like me marry someone who described himself — proudly! — as “very conservative”? (“But he’s pro-choice and believes in gay marriage,” I assured them.)

Not surprisingly, Bret and I argued about politics intensely and often. At one point during the Clinton controversies of the 1990s, I remember screaming at him on a Soho sidewalk, my face mottled with tears. How could someone I knew to be a good person possibly believe what he was saying, and why, dammit, must he make his points so cogently?

The lesson: After our divorce and back in my liberal province, I actually missed those intellectual battles. What better way to keep an open and sharp mind? Without someone “in house” to spar with, I found myself seeking political debate elsewhere.

The dismaying statistics:

Unfortunately, many Americans — and worryingly, many younger Americans — are looking for it less frequently. In 1958, 33 percent of Democrats said they wanted their daughters to marry a Democrat, and 25 percent of Republicans said they wanted their daughters to marry a Republican. By 2016, 60 percent of Democrats and 63 percent of Republicans felt that way. By 2020, 43 percent of single Democrats said they probably or definitely wouldn’t date someone Republican (compared with 24 percent of single Republicans who wouldn’t date a Democrat). According to one study, only 21 percent of marriages today are politically mixed. Democrats are especially unlikely to have friends from across the political divide. Polls show that partisans on both sides view their opponents as “closed-minded” and “immoral.”

And the overall lesson:

When you don’t know someone personally, it’s easier to assume the worst about him. And if you assume your opponent is immoral, you don’t have to listen to him, that he’s not worthy of charitable interpretation. But if you assume your political opponent is operating in good faith — even if the person isn’t a friend or significant other — you’ll be inclined to hear him out.

Students at Stanford Law School would do well for themselves to hear out their opponents. In the professional world, it won’t be enough to deem their opponents evil and declare the battle won. They will be sitting across tables from their adversaries and trying to make persuasive arguments against them in courtrooms. Their success will depend on a mutual assumption of good faith from both sides — and from the bench, where not only Judge Duncan but 53 percent of active federal appeals judges were appointed by Republican presidents.

Beyond the personal stuff, there’s really nothing here that you can’t read in the must-read pamphlet On Liberty by John Stuart Mill (it’s free online here, WHICH YOU MUST READ NOW), except it goes doubly for law students, who are constantly, no matter what their job, forced to stand in their opponents’ shoes and think, “What is the best argument they can throw at me?” If they don’t think that way, they’ll be lousy lawyers.

But this goes for everyone else, too.  Unfortunately, the polarization of America, combined with the intellectual arrogance of all those who think they know the truth, and thus doesn’t have to listen to anybody’s arguments, bode ill for the future of reasoned discourse. This quarter at my university, the Students for Justice in Palestine, who of course know the truth (which is that the genocidal and apartheid state of Israel should be eliminated) have tried to shut down a University class by former Israeli General Meir Elran on counter-terrorism, a course approved by the University. (Elran is no longer with the IDF, but of course he’s still accused of being in the military and being in favor of “Palestinian genocide.”)

The student newspaper even gave three full pages to the SJP to beef about Elran’s course, an unprecedented amount of space for what is an op-ed (you can read it here).  The SJP have never suggested that people might want to listen to (and counter, if they object) Elran’s instruction. No, they have just agitated and tried to shut down the course via demonstrations and petitions.

It won’t work, of course, because this is the University of Chicago. Naturally, the students are free to object to the course as much as they want without disrupting it, but it’s sad to see a group so sure of their assertions, which are dubious at best, that they brook no possibility that they’re wrong. They’ve cut themselves off from learning anything, because of course that might cause them to rethink their conclusions.

I think Mill’s pamphlet should be required reading for all students entering the University—indeed, all universities—as part of a short unit on free speech. Sadly, though, by the time they get here, most students are already fixed in their views, or will be shortly when they join an ideological tribe.  It’s a good thing that I taught stuff that only wacko creationists could object to!

25 thoughts on “Pamela Paul on the Stanford Law School debacle

  1. I haven’t been able to find this, but a commenter here linked to an account a day or so ago about the violent suppression of speech in Auckland at the protest organized by Kellie Jay Keen. The link described the attempt by a woman at the meeting to give her speech, but she was not allowed to speak by the activists. She was certainly in danger, as were other women at the protest. Keen herself was also not able to speak, tomato soup was poured on her, and she was enabled to get away by her staff.

    1. I saw video footage of the protesters — those wonderful defenders of the downtrodden — assaulting an elderly man, or possibly woman.

  2. “The Most Profound Loss on Campus Isn’t Free Speech. It’s Listening.”

    This difference is illustrated in this famous painting :

    … I don’t know how long I knew of that painting before I realized the number of ears and attentive faces takes up most of it. Originally I thought “yeah, we can stand up and speak our mind. That’s good.”

  3. “By 2020, 43 percent of single Democrats said they probably or definitely wouldn’t date someone Republican (compared with 24 percent of single Republicans who wouldn’t date a Democrat).”

    One of Trump’s sycophants (I can’t remember which one) and her daughters recently opened a conservative dating site. They had many men sign up to meet “hot conservative women”, but NOT A SINGLE woman signed up.

    Maybe even “hot conservative women” don’t want to date conservative men.

    Gee, I wonder why.


    1. Back in the day, my position on dating across Party lines was that it was okay as long as the woman was raised Republican. The continued Republicanism of such women was usually an outgrowth of their affection and respect for their fathers — qualities I generally saw as positive.

      On the other hand, a woman who was raised to know better, but embraced Republicanism as a young adult on her own — now that I couldn’t abide. 🙂

    2. Um, assuming that this is not a made-up or misremembered story, my guess would be that a dating site hawking a chance to meet “hot conservative women” would not attract many lesbians.

      1. It’s not likely to attract many conservative women either, since men who want someone “hot” are a dime a dozen and could be found anywhere. Conservative women would be more likely to be looking for marriage material.

        1. I’m sure you’re right, Sastra, speaking as someone who turned out to be marriage material. I was only making an observation that the tag line, “meet hot conservative women”, would be likely to attract only men in the first place and not heterosexual women, so no surprise at what it netted. Of course this is the business model for dating sites anyway. Charge incel men a large membership fee and employ a few female ringers to simulate dates with just enough of them to keep the illusion alive. They don’t really expect genuine women to sign up, except as unwitting free labour.

  4. “…a reasoned and civil Q&A session, which of course didn’t occur at Stanford”

    Didn’t it? I wasn’t there or anything, but I as understand they did have a Q & A session after the (abridged, disrupted) talk. The judge apparently got a bit testy, but I figure it was probably as reasoned and civil as any of these things get.

    1. I suggest you either read the transcript or listen to it. No, it was a shouting session, and the students weren’t trying to quiz the judge on the final points of the law or philosophy. “Brawl” would be more like it.

  5. Once Scalia finished and we the righteous had a chance to speak truth to the evil one, we would rip apart his so-called originalism, his hypocrisies, his imperiousness. We were champing at the bit to have our say.

    Nino Scalia had a sense of humor, a certain Queens street-corner charm (albeit an aggressive one, like he was always looking to challenge his opponents to a round of The Dozens), and the best (and most accessible) writing style of any justice during his three-decade tenure on the SCOTUS bench.

    I’ve gotta admit it was long one of my guilty pleasures always to read his concurring and dissenting opinions in full, even in cases regarding areas of the law in which I had little interest. Sometimes I’d actually learn something legally, but would almost always come away with a clever turn of phrase. And it was a not-so-guilty pleasure on the rare occasions when I’d agree with him on an outcome in an area of the law I do care about (usually when there was an overlap in the liberal and libertarian viewpoints on some issue of free speech or criminal justice).

    Nevertheless, it seemed to me that Scalia’s humor and writing style curdled a bit during his last couple years on the bench. He seemed less interested in persuading readers to his point of view and more interested in doing battle with his perceived enemies — his weapons of choice being the close-quarters putdown and an exchange of mordant footnotes at twenty paces.

  6. The statistics about mixed political dating and marriage is a symptom of extreme polarization. They should surprise no one. Why should anyone want to establish a close, personal relationship with a person whose views they consider abhorrent? If polarization should someday decrease, mixed dating and marriage will increase. It is one thing to hear or read the views of a person you don’t know and don’t agree with. It’s quite another to have such a person around you for many hours every day. The same goes for a friendship between two people of extremely divergent political views and who are not reluctant to express them. Paul is vague on whether political differences with Bret Stephens contributed to the breakup of her marriage, but they certainly didn’t help.

    1. I always found it heartening that Scalia and the Notorious RBG could maintain a friendship off the bench. Of course, that friendship arose before the severe partisanship brought on by Trumpism.

      These days, it’s difficult to see how anyone not on the far rightwing could maintain a close social relationship with Ginni Thomas and her husband.

  7. I have heard on several occasions from liberals that Scalia was a brilliant jurist even though they didn’t agree with most of his decisions. There seems to be a logical inconsistency here. If one thinks he was brilliant (as opposed to him just being clever with the use of words) and yet disagrees with his decisions, isn’t that an admittance by the person that he (the person) is not brilliant and logically should agree with his decisions?

    1. I’m not sure that follows, Historian. Different judicial philosophies will yield differing decisions, regardless of the brilliance of the jurist who authors those decisions.

      Everyone who makes it onto the US Supreme Court bench is “brilliant” — at least in some narrow legal credentialism sense of that word (especially now with all the vetting and re-vetting and the narrow pool from which nominees are drawn). Scalia was no more brilliant than his peers, though he was a more clever writer.

      1. Different judicial philosophers are usually fig leaves trying to cover pre-ordained ideologically driven conclusion. They explain bupkis about most decisions, although they do explain much verbiage. Scalia was a brilliant rationalizer – I’m not sure that’s sufficient for being a brilliant jurist.

  8. I appreciate you posting this. (I found myself oddly hoping that the journalist had grounds for her divorce other than political strife.) I read it just after musing on some related questions in an otherwise-uninterrupted moment. How many highly-educated Americans have friends or close colleagues who are working-class, high school graduates (let alone dropouts)? How many devout believers call any atheists friends? How many atheists would allow them to? How many children of janitors and housekeepers do the children of doctors and lawyers know in school?

    I have had the privilege of circulating throughout my adult life between the bluest of blue cities and states and the reddest of red, my time about evenly spent in each. Of working closely with or talking to Ivy League grads and PhDs on one day, with working-class high school grads and dropouts another. Of living in some of the wealthiest and most educated towns and counties of the country and some of the poorest. I wish I could say that it has necessarily made me wiser and more compassionate. I wish I could say it has made me more moderate, but I think the latter is just my inclination, anyway. It has given me a revolving and disparate collection of friends, associates, and neighbors—an experience I would never trade for some notion of correctness or tribal purity. Yet, somehow, the idiot man on Twitter saying the same political thing as my otherwise well-liked neighbor does not seem the same.

    I can also say that I have been frequently shocked (and irritated) at the mutual incomprehension, ridicule, and disdain heaped upon opposing groups. Not social media shocked, but real-life, face-to-face shocked. It has become so routine in some like-minded circles that I suspect the people do not even realize the degree to which they do it. I do not know how to bridge those divides. But I am pretty confident that casting stones at “deplorables” with a “shut the fuck up you ignorant rubes, and let us tell you how to live and what to do” attitude is probably not going to do it. Nor is electing self-promoting media whores who do nothing more than stroke themselves and needle the other side. But that is all above my pay grade, as they say. It does seem that we who are more scientifically and policy-inclined do now see government and society as largely a series of management problems, problems in which we have expertise and to which we have solutions. But I increasingly wonder what that has to do with “We the people” and our rough-and-tumble experiment in self-government. Unless, of course, excluding those with whom we disagree is part of our solution.

    A certain woman’s voice is echoing in my head: I don’t want you to fix the problem; I want you to listen. So, again, thank you for posting this.

  9. Isn’t there some problem here with assuming conclusions? Is the idea that reading Mill will enlighten the ignorant about The Truth, in unassailable argument that once presented cannot be denied? That seems rather against the whole tone, that one can’t ever be certain – thus wouldn’t it follow that Mill might be completely wrong?

    I don’t want to go into great detail about the anti-free-speech argument. But it certainly does exist. No, every random student protestor is not going to be able to give a Ph.D level seminar explaining it. But to be consistent, shouldn’t there be great interest in acknowledging the weaknesses of the free speech position, from the best counter-arguments?

    1. Not really, Seth. (Edit: here I refer to your earlier question, could Mill be wrong?, not to your later interest in hearing the anti-free speech position.). A non-negotiable position that no speech can be silenced by the State allows even the anti-free speech position to make its case in the public square, as Mill himself pointed out. The case will typically be made by the agents of the benevolent State, with the goal of preventing the opposition from obstructing its good works. Once you yield to that position you have lost it forever because the State can now use force to shut you up. To gain back the right you have to use greater force, which rarely goes well.

  10. I rarely find myself in the company of people who do not share my own political views. This was less the case when I was a child, where folks both conservative and liberal (and sometimes also racist and antisemitic) all lived in the same community. The boys played together on the Little League team, the girls played softball, and the entire community squeezed into our little community center building to show off our costumes and bob for apples on Halloween. We weren’t very aware of the political views of others and, frankly, we didn’t really care.

    Gradually over time, my orbit narrowed. This was partly because I naturally gravitated toward people who were like me, but it was also because of the level of education I had attained and the kinds of work that I did. Social media exacerbates the problem, by making it even easier for people to locate their own “tribe” and cling to it. I was slowly but surely drawn toward my social center by a cultural centripetal force.

    My guess is that my experience is common and that it is now infrequent or even rare for people with differing viewpoints to find themselves together. The university is one of the few remaining institutions where diverse points of view come into contact. And now, it seems that even the academy is becoming less what it once was—a locus of diverse views, respectfully debated.

    Where will this continued Balkanization of society lead? I’m glad that Pamela Paul is standing up for civil debate—and I’m glad that Jerry and his discussants on this site are making their views known as well. But the fine art of listening be saved?

  11. Brian Leiter has a better take on free speech than J.S. Mill. Namely, distrust of the would-be arbiter in government is the main reason to support free speech. This does not extend to the idea that students should go listen to random speakers they disagree with. (It does extend to allowing speakers to speak, at a university which posted its free-speech policy before you entered.)

    Students should read and listen with an aim to hitting on evidence and truth. A culture warrior hack like Judge Kyle Duncan is not a good bet for that. (Caveat: sometimes it’s useful to listen to someone you know will be wrong, in order to diagnose and prevent similar mistakes. I sometimes read First Cause Arguments for the existence of God just to get a better feel for how people misconceive causality.)

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