Let’s talk about Stanford’s law students
I was on vacation when Judge Stuart Duncan appeared at Stanford Law School at the invitation of the Federalist Society. As you all know, he was greeted with strident, often obscene slogans and personal invective, all of which culminated with the “associate dean for diversity, equity and inclusion” joining with the students to say that Duncan was so hate-filled that, while theory dictated he should be heard, in fact, he wasn’t worth it. Afterward, the students harassed the dean who eventually apologized to Judge Duncan, only for them to become hysterical and paranoid when their names became public. Stanford is training its students to be members of Mao’s Red Guard, rather than lawyers in a representative, constitutional democracy.
I entered law school almost 40 years ago. During my first year there, I learned two things I’ve never forgotten. Both have guided my career. The first came about when our torts professor called upon a very shy student to discuss a malpractice case involving a hysterectomy gone wrong. The case, in a straightforward fashion, used words for the female reproductive system: vagina, uterus, ovaries, etc. Every time the word “vagina” came up in the discussion, the student (who was brilliant) just choked. “Va-va-va….”
Very kindly, the professor explained to the whole class that, as lawyers, we exist to serve the client’s needs. In that service, there should be nothing we cannot or will not hear or say. To do otherwise—to ignore arguments that we need to hear so that we can counter them or to censor ourselves over words or ideas that embarrass us—is a breach of our fiduciary duty to our clients, not to mention potential malpractice. In the client’s service, if what we say is true or we reasonably believe it to be true, there is nothing we should ignore or, provided it’s legal, refuse to say.
Image: Justice and the law by Freepik.
The second thing I learned was that all people, even hateful ones, deserve a lawyer. That came up in my criminal law class. Back then, the University of Texas at Austin was a conservative institution, unlike today’s hard-left institution, so most of the students in the class were “law and order” types. Somehow, the question came up in crim law about the morality of representing someone known to be criminal or just plain evil.
I’m paraphrasing, so I don’t remember the professor’s exact words, but I’ve never forgotten the gist. In the criminal context, the government holds all the cards because it pays and controls the police, the courthouse, the judge, the jailer, and the executioner. The only balance against that overwhelming power is the jury and the defense attorney. And regarding the latter’s role, our professor said, that no one should ever have to stand alone before the majesty and power of the law without a friend at his side. The defense lawyer is that friend.
In other words, as lawyers, we must listen to, grapple with, and understand even ideas and people that are offensive to us. Otherwise, there is no counter to a government on a mission.
At Stanford Law, today’s students are not being taught that it is their fiduciary and constitutional duty to listen to the other side, even if that means they will be unable to understand and intelligently counter an opponent’s arguments as part of defending their client. They also don’t understand that our legal system works only if this willingness to listen goes both ways—that is, the opposition will listen to their words, not to agree, but to offer the best challenge possible for his or her client. If you won’t listen, you are failing your own (potential) client.
Instead, Stanford’s Red Guard students are learning the lesson of all tyrants: Silence the opposition. Stanford has ceased to be a law school in the honored and ancient Common Law tradition that we inherited from the British. Its students (and perhaps the professors) probably don’t know or care that our second president, John Adams, who was white (bad) but not a slaveholder (less bad), ably defended the British soldiers charged in the Boston Massacre, even though Adams was already a staunch patriot at the time.
Adams listened to his clients and studied the evidence. Based on that, and on honest testimony from people who took seriously the oath they swore on the Bible (“the truth, the whole truth, and nothing but the truth, so help me God”), won an acquittal by proving that the soldiers acted in self-defense. In his summing up to the jury, Adams spoke words that should be inscribed everywhere that truth matters:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.
One other thing to remember about these Stanford students: like all bullies, they are also cowards. Aaron Sibarium, who wrote about them for the Free Beacon, had to school these future lawyers about free speech and the public square:
On Sunday, I identified board members of the Stanford National Lawyers Guild--one of the groups responsible for the posters--who in a public statement described the protest as "Stanford Law School at its best."— Aaron Sibarium (@aaronsibarium) March 17, 2023
A few hours later, the board demanded I redact their names.
"You do not have our permission to reference or quote any portion of this email in a future piece," she added.— Aaron Sibarium (@aaronsibarium) March 17, 2023
Needless to say, that's not how the First Amendment works.
We received a note from Mary Cate Hickman demanding that we "anonymize the face of the student in the red hoodie" because "California is a two-party consent state, and you have no right to publish this student's identity/likeness/face without consent."— Aaron Sibarium (@aaronsibarium) March 17, 2023
There is no presumption of privacy in a law school classroom where student activists are snapping photographs and posting them to Instagram, especially in the wake of a nationally televised protest at your law school.— Aaron Sibarium (@aaronsibarium) March 17, 2023
"Where Stanford has failed to educate them in the limits of privacy and the rights of a free press, we will endeavor to fill the void with our continuing coverage of this ugly affair."— Aaron Sibarium (@aaronsibarium) March 17, 2023