The Ref Has Been Worked: Harvard Law’s Flake-Out

There is an idea in sports called “working the ref.” You accuse the ref of being biased toward your opponent, and the ref starts being biased toward you to make up for it. It’s a clever tactic for bending an easily-rattled referee to your will.

In institutional politics, the right-wing establishment has honed working the ref into an art form. It’s a two-part dance. First, they take institutions that see themselves as “neutral referees” and accuse them of having a “left-wing bias.”  Then, they repeat themselves over and over and over again — no matter what the truth of the matter is — until the institution is so rattled by being called biased that it, in an attempt to affirm its neutrality, starts doing whatever the right-wing wants.

Dozens of institutions that see themselves as referees have been worked. PBS has long been accused of being left-wing, so it finally gave in this year and launched its own conservative talk show. The New York Times, The Washington Post and The Atlantic editorial boards got accused of being left-wing so much that they just went on a hiring spree for conservative columnists. The Obama administration so internalized the accusation of being left-wing that  it started implementing conservative agenda items, like cutting entitlements and deporting thousands of American families, to prove its neutral bona fides.

There are three pernicious things about widespread ref-working.

First, the left is not working the ref with allegedly conservative institutions. There are not reams of op-ed columns accusing the military or evangelical Christianity of having a right-wing bias. There are not watchdog groups that document how many Fortune 500 CEOs or police officers are Republicans. Despite widespread support among young people for New Deal-like democratic socialism, there is no outcry about The Wall Street Journal’s failure to hire a democratic socialist columnist. As a result, referee institutions only get worked rightward, not leftward. This, multiplied by hundreds of “referee institutions,” moves the center of gravity of politics rightward without any change in public opinion.

Second, when a liberal referee institution dignifies accusations of left-wing bias, they obscure their own right-of-center qualities. Take The Washington Post editorial board as an example. It is true that the cultural beliefs of the average Post editorial writer are more multicultural and modernist — pro-immigrant, pro-gay, pro-diversity, pro-feminist — than those of the average American. But self-flagellating over that “bias” might hide the fact that the average Post editorial writer is more corporatist and militarist — more interested in cutting entitlements, less interested in raising the minimum wage, more interested in military adventurism, less interested in rolling back the Drug War — than the average American.

Indeed, referee institutions who are worked by the right rarely respond to calls for breaking open their “liberal bubble” by actually asking what the broad swath of American people want of them. Rather, they ask what right-wing elites — who are in their own bubble — want of them. As a result, the figures raised up by ref-working are usually the rarest of people: the minuscule group of Americans who love modernism and multiculturalism, but also love destroying the last vestiges of 20th-century public protections for working families.

Third, when an institution allows itself to be worked, it loses sight of its own mission. The New York Times’ job is not to provide views from both sides of the aisle — it is to inform the public of what it finds to be true and important. A high school science curriculum’s job is not to balance what the Republican donor class and what the Democratic donor class each want it to teach about climate change. It is to inform students about the scientific consensus on climate change. The Obama administration’s job was not to please both Democratic elites and Republican elites. It was to advance the programmatic vision that the nation elected Obama to advance. James Comey’s job was not to balance bad press between both Presidential candidates. It was to follow standard FBI procedure with regard to criminal investigations. When an institution allows itself to be worked, its mission leaves the driver’s seat and the right-wing establishment takes the wheel.

The worst thing of all? It’s all for naught. No matter how much you move your institution right, the right-wing ref-workers are never satisfied.

An understanding of this right-wing power tactic helps make sense of the selection of Jeff Flake as Harvard Law School’s 2018 Class Day Speaker. The selection of such a figure — a Uranium mine lobbyist; a staunch opponent of disaster relief funding; a yes-vote on the calamitous Iraq War; a passionate opponent of efforts to provide health and economic security for working families; a supporter of the procedural chicanery that blocked Merrick Garland’s ascendance to the Supreme Court; a gay marriage opponent; a budget hypocrite who both advocates for deadly austerity and supports enormous tax cuts for the rich; and a yes-vote on closing down the Legal Services Corporation, the last relic of “equal justice under law” for poor Americans in the civil justice system — is a consequence of another successful effort by the right to work the ref.

All of the pernicious qualities of this tactic apply here at Harvard Law.

While Harvard Law School appoints a conservative dean, accepts millions of dollars in donations from the radical Olin foundation to teach business-friendly law and economics courses, and celebrates its conservative graduates with memorial lectures and large paintings on the wall — all for the sake of affirming its neutrality — the Liberty University Christian School of Law, The Antonin Scalia Law School, and Regent University Law School feel no such qualms about pushing merrily rightward.

While Harvard Law School professors Adrian Vermeule and Jack Goldsmith write a Washington Post op-ed decrying the left-wing bias of the law school, the same professors remain quiet about, say, most Harvard Law graduates advancing corporate interests after law school, or the school’s labor law professors being outnumbered by mergers and acquisitions faculty.

And most disappointingly, in its desperate effort to genuflect to right-wing bullies, Harvard Law School loses track of its mission. Our school’s mission is to educate leaders who contribute to the advancement of justice and the well-being of society.  It is to remain relevant by responding to what Oliver Wendell Holmes called “the felt necessities of our times.”

What are the felt necessities of our times? A quarter of our nation’s children live in poverty. A fifth of our neighbors suffer from persistent loneliness. Millions of Americans live in the shadows as second-class citizens because of their immigration or criminal status. Hundreds of millions of our global neighbors are threatened by a changing climate that our own nation helped destabilize. Our mediating institutions — family, faith, neighborhood, labor union — have been cored out. Median white wealth dwarfs median black wealth 12 to 1, leaving many black Americans wondering if the American Dream includes them.

What are the crises in the advancement of justice? Public defender dockets are overstuffed. Our shameful prison system has ballooned eight-fold in the past decades. Over 80% of civil legal needs go unmet. On Capitol Hill, corporate interest lobbyists outnumber public interest lobbyists 34 to one. There is endemic lawlessness — be it in the form of billions of dollars in wage theft each year, a state of endless war disturbingly justified by a seventeen-year-old authorization, or the reckless corruption of the Presidency.

Our Class Day Speaker should be someone who can teach us about what it takes to respond to these crises. Jeff Flake does not know what it takes, because, for the most part, he and his reactionary colleagues have contributed to the aggravation of these crises. And, to put it bluntly, his final act in public life — not seeking reelection out of fear of a primary challenge — has been a timid abdication of his platform for checking our shameful President. What does that teach us about fighting for what we believe in?

There are hundreds of Harvard Law graduates and professors who could teach us a lot about responding to the felt necessities of our time and fighting for what we believe in. Gina Clayton is organizing mothers of the incarcerated to fight mass incarceration. Lori Wallach is fighting anti-democratic trade agreements. Ralph Nader has spent a lifetime fighting for the American consumer. Alec Karakatsanis is fighting for bail reform. Carol Steiker is dismantling the death penalty. Julie Su is fighting for low wage workers in California. Seth Moulton is organizing veterans to run for office. Russ Feingold is a leading campaign finance reform advocate. Elizabeth Warren helped found the Consumer Financial Protection Bureau. Sylvester Turner is the devoted mayor of Houston, Texas. Lam Nguyen Ho is revolutionizing legal aid for communities of undocumented immigrants, sex workers and day laborers. Joshua Matz is watchdogging the Trump administration.  And just like Jeff Flake, HLS grad and Alabama Congresswoman Terri Sewell has broken with the President’s disturbing policies— she just happened to do it a lot more consistently than Jeff Flake did, and is thus less recognized for it.

Harvard Law’s Class Day ceremony may have fallen victim to another successful ref-working operation by the right, but we, as a Class, do not have to fall victim, too. Harvard Law’s own Roberto Unger has advice on this matter: stop trying to be a ref. Neutrality, he argues, is an “illusory and ultimately idolatrous goal,” because “no set of practices and institutions can be neutral among conceptions of the good or possibilities of experience.” In place of neutrality, we should substitute openness — openness to a diversity of experience, openness to correction, openness to new ideas.

Another restatement of the right-wing ideas that have dominated American political life for the past decades does not serve to open up our institution. And the pursuit of a perfect middle-ground between the ideas of Democratic elites and Republican elites does not open up our minds. Our nation and our legal profession does not need more easily-manipulated refs — it needs more neighbors, open-minded and on a mission.

Pete Davis

Pete Davis is a civic reformer from Falls Church, Virginia and a member of the Harvard Law School Class of 2018. Email Pete at Tweet at Pete at @PeteDDavis.
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