The Trumped-up Stanford Law School free speech scandal
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As this reporting by Mark Joseph Stern makes clear, the whole thing was a set-up from the beginning, meant to generate lots of publicity for a future SCOTUS candidacy:
Before turning to the strategic element of Duncan’s very public tantrum, it’s worth clearing up some misinformation about the event. The initial narrative was heavily shaped by a video and accompanying Twitter thread posted by Ed Whelan, a conservative commentator best known for falsely accusing one of Brett Kavanaugh’s classmates of sexually assaulting Christine Blasey Ford on the basis of Zillow floor plans. At the start of Whelan’s video, it sounds as if progressive protesters “shouted down” Duncan (in Whelan’s words), preventing him from delivering prepared remarks.
As multiple firsthand accounts and videos demonstrate, that is not what happened. In reality, at the start of those remarks, the protesters peppered the judge with questions and criticisms but did not drown out his speech. Instead, a frustrated Duncan asked for an administrator to step in to tamp down the heckling. At that point, Tirien Steinbach, the associate dean for diversity, equity, and inclusion (and a Black woman), approached the judge. In the video, it appears he did not recognize that she was the administrator he had requested; “You’re an administrator?” he asked. Students began shouting to explain to the judge that Steinbach was an administrator (and that is when Whelan’s video begins). Reluctantly, Duncan let Steinbach speak. She told the students that she agreed with their criticisms of Duncan, but that they had to let him express his views. (Duncan responded that she had participated in a “setup.”) Steinbach also invited protesters to leave if they wanted to, and many exited. Videos reviewed by Slate show that a student leader of the protests then asked the audience to stay silent so Duncan could talk. They did.
The judge, however, decided he no longer wished to deliver his prepared remarks, and instead moved straight to a Q&A. Students responded with harsh but important questions about his jurisprudence, especially his adamant refusal to use a transgender litigant’s preferred pronouns. Duncan dismissed many of the questions and responded to others with insults. (For instance, he accused the protesters of asking “When did you stop beating your wife–type questions.”) Finally, he prematurely cut off Q&A and left.
As Stern notes, Duncan’s very injudicious-seeming tantrum wasn’t even a sincere loss of composure: it was all part of a carefully pre-planned stunt:
As Duncan told legal commentator David Lat, he knew his speech would be protested. That’s why he walked into the school with his phone out, recording student protesters (and taking care to get close-up shots of their faces). As one source told Lat, Duncan looked “more like a YouTuber storming the Capitol, than a federal judge coming to speak.” This source expressed surprise that the judge did not “prepare himself to stay composed.” But videos of the event, combined with Duncan’s behavior on the bench so far, strongly suggest that he did prepare himself—not to “stay composed,” but to belligerently insult the protesters with schoolyard taunts.
Now why would he do that? Well . . .
Recall that this man made his way to the bench by being a professional bully. Before his elevation to the 5th U.S. Circuit Court of Appeals in 2018, Duncan tried to revoke gay parents’ rights over their adopted children, defended same-sex marriage bans, and fought against the rights of transgender schoolchildren. He condemned the constitutional right to same-sex marriage as a “license” to “persecute churches” and an “abject failure,” warning that it “imperils civic peace.” (Asked about the “civic peace” comment on Thursday, Duncan gestured toward the largely LGBTQ audience, as if they proved him right.) In his current position, he wrote a cruel, petty opinion misgendering a trans litigant while mocking the very notion of gender identity and preferred pronouns. Duncan has consistently voted with the most radical bloc on the far-right 5th Circuit; in one particularly notorious case, he sought to force the military to deploy unvaccinated SEALs over their commanders’ objections. (The Supreme Court soon overruled him.)
In 2023, none of that is necessarily enough to place Duncan on the shortlist for the next GOP president’s Supreme Court nominee—particularly if that president turns out to be Trump. Several of his fellow Trump nominees on the 5th Circuit are outflanking him: James Ho fills his opinions with rants against abortion, gun control, woke corporations, cancel culture, and other conservative hobbyhorses of the moment; he also launched a headline-grabbing boycott of clerks from Yale Law School. Duncan’s and Ho’s 5th Circuit colleague Andrew Oldham has become a vociferous critic of Big Tech’s alleged silencing of conservative voices and a law-and-order zealot. Over on the 9th Circuit, Judge Lawrence VanDyke has accused his liberal colleagues of playing “dirty,” declared that they should be “embarrassed” for siding with immigrants, mocked them for caring about mass shootings, compared them to criminals with “rap sheets,” and likened them to “a sullen kid who spits in the cookie jar after being caught red-handed.”
Given this kind of competition, Duncan needed to step up his game:
The conservative legal movement is increasingly looking for judges who approach the job with a politician’s instinct for ruthless demolition of the opponent. John Roberts’ style of polite, restrained conservatism is out, jettisoned in favor of brawling, fiery radicalism. Trump and his advisers—most importantly, Federalist Society co-chair Leonard Leo—chose judges like Duncan because they represent the a younger generation of jurists who defend their beliefs with rancor and fury.
Members of this new guard know what they were put on the bench to do. They are cheered on in conservative media and welcomed as heroes by the GOP. And when a Supreme Court vacancy opens under the Republican president, whether it’s Trump, Gov. Ron DeSantis, Sen. Josh Hawley, or some other demagogue, these judges will be first in line for a promotion. The cycle is already repeating itself: Hard-right Federalist Society judges tend to hire similar-minded clerks, creating a radicalization machine that pushes new conservative lawyers further and further to the extreme. When Federalist Society members in law school pull a stunt like blocking a progressive student’s graduation or flashing a gun in Zoom class, they are merely emulating their future bosses. . . .
These developments are the logical result of the Republican Party’s longtime mantra “No More Souters.” Initially, this principle required a record of ideological purity. But that is no longer enough. There are now dozens of appeals court judges who are certain to remain staunch conservatives if lifted up to SCOTUS. What Republicans want now is performative fidelity to the cause: a Trumpian instinct for punching back twice as hard and a total commitment to the whole package of modern conservatism, trolling and gaslighting included. It is not enough for the next GOP justice to be to the right of Clarence Thomas and Samuel Alito. He must also yearn for a street fight with his ideological foes.
Again, the concept of cumulative radicalization is a key to understanding what’s happening to the right wing in this country.
All the Even the Liberal types who are agonizing about how Kids Today don’t understand the Sacred Principles of Free Speech are playing straight into the hands of this performative proto-fascist bullshit (Check out this curated collection of cri de coeurs).
Don’t get fooled again.