Harvard Pays Tribute to Alan Dershowitz
On Monday, Harvard Law School hosted a celebration of Prof. Alan Dershowitz’s fifty years of teaching with an entire afternoon of panel discussions featuring legal scholars, past students, and colleagues in the academy and the law. It was a moving tribute to a man who has earned a unique place in history--not just at Harvard, not just in the law, but also in broader American society and in the long history of the Jewish people.
The celebration kicked off with a panel on scholarship, and featured not one but two past presidents of the Supreme Court of Israel, Aharon Barak and Dorit Beinisch. The first word went to Barak, who started by praising Dershowitz’s extraordinary capacity for friendship, shown to him when Barak was a lonely Israeli on campus in the 1960s. He then ripped into Dershowitz’s controversial theories on judicial approval of torture.
Dershowitz’s argument--made in order to prevent torture, a point his detractors often ignore--was that since the government uses torture anyway, it is better for it to be constrained by “torture warrants” that would have to be approved by the judiciary. Barak disagreed, and said that the judiciary could not stop torture by condoning it, but rather that the moral burden of torture had to be “a personal decision of a human being.”
Though disagreeing, Barak noted that Dershowitz had anticipated the torture debate long before 9/11, partly by studying Israel’s experience--and that both the U.S. and Israel had benefited from his insights. Next, Beinisch picked up where Barak had left off, praising Dershowitz’s warmth and then launching into a refutation of his ideas about the exclusionary rule, which protects defendants from improperly obtained evidence.
Beinisch also praised The Case for Israel, and thanked Dershowitz for his continuing work on behalf of the Jewish state in the academy and the international arena. That theme continued in comments by Prof. Nathan Mnookin, who stressed Dershowitz’s work that had been addressed to the Jewish community, and addressed one book, The Vanishing American Jew (1998), which talks about the decline in non-Orthodox Jewry.
Mnookin spoke about the disappearance of barriers to American Jews--and the paradox that as discrimination ended, the community’s cohesion began to fall apart. Dershowitz proposed three answers: one, a return to religion; two, migration to Israel; and three, an integration of contemporary values of justice, charity, and peacemaking with Jewish identity. (It is a distinctly liberal--as in, Democratic--vision, but one Mnookin praised.)
Prof. Akhil Amar was next, and reminded the audience that the panel had only just begun to scratch the surface of Dershowitz’s scholarship, which amounts to dozens of book. Amar discussed Dershowitz’s exploration of the Fifth Amendment, IIs There a Right to Remain Silent? (2008), which explains the right is far more limited than most Americans believe (a lesson Lois Lerner, of IRS infamy, may have learned too late).
Dean Martha Minow--who has ably filled the shoes of her well-regarded predecessor, Elena Kagan, wrapped up the panel, noting that this was the one panel she wanted very badly to be on. Dershowitz is a great scholar, she said, because “Alan asks great questions.” He also “takes positions,” she said, and in triggering an argument reveals the many layers within an idea--an emphasis on his scholarship “through dialogue.”
Dershowitz responded to the panel by jovially posing one question to each panelist, noting that he would like his epitaph to be: “He asked difficult questions and refused to accept simple answers.” Among other comments, he praised Beinisch’s response to his ideas on torture, noting that her approach, which created accountability in the head of the security services, was a good compromise that created at least some accountability.
The next panel focused on Dershowitz as a litigator, and was chaired by Prof. Charles Ogletree, with whom Dershowitz shared an office suite for several years. (I should note that Ogletree is a legendary teacher in his own right--one of my own favorites at Harvard, though I disagree with him on everything, including his support for Barack Obama, whom he served as debate coach in his presidential campaigns.)
Judge Nancy Gertner, who had once litigated alongside Dershowitz, noted some of the “first principles” he had taught her--the need to research everything in preparing a defense, the importance of new and daring arguments, and the relentless pursuit of justice without regard to one’s own interests. Though portrayed as a “celebrity lawyer,” she noted, Dershowitz has also defended the humblest people in the lowliest conditions.
She added that Dershowitz was a staunch defender of the Bar--and that he also knew how to use the press in advocating for his client’s cause. Whereas once such tactics might have been scoffed at, Dershowitz was ahead of his time in understanding that “there was a wider audience” for justice. In that capacity, she said, his ability to explain and “translate” law into common parlance was a crucial skill and contribution.
Next to speak was Harvey Silverglate, another famous attorney and civil libertarian--who, coincidentally, has an article in the Wall Street Journal today about Kaley v. United States, now pending before the Supreme Court. He noted that Dershowitz had been a “pioneer” in showing how constitutional and legal errors were correlated, a strategy that he deployed as an appellate lawyer in overturning many an unjust conviction.
Silverglate paid Dershowitz the ultimate lawyer’s compliment: he fought and won cases considered “unwinnable” in an age when the entire machinery of the criminal justice system, for all its protections, is geared to produce guilty verdicts. He added that many of the characters from Dershowitz’s dramatic legal contests ended up as guest lecturers in Dershowitz’s classroom, bringing the real world of criminal law to life for students.
Wrapping up the panel was Martin Weinberg, a passionate defense lawyer who praised Dershowitz for advocating civil liberties even in the face of public pressure for swift verdicts and punishments, even in the recent Boston Marathon bombings. He added the O.J. Simpson case to that list: “Even if guilty, he was still framed,” Weinberg said, adding that the argument would not have been made without Dershowitz’s insights.
Ogletree wrapped up the panel by noting Dershowitz’s unique brand of advocacy for the First Amendment, including in many battles on campus. Contrary to many others, he said, Dershowitz recognized that “the only thing that would respond to hate speech is more speech, and it was the only thing that was effective.” (Many others, including my late friend Andrew Breitbart, have been inspired by the ethic Dershowitz championed.)
At that point, Dean Minow interjected with a letter of congratulations from President Barack Obama. Dershowitz jumped up--“Even a letter from the President does not go unanswered”--and, dismissing the formal letter as the evident work of a White House staffer, read his own handwritten note from President Obama for his 75th birthday, wishing him a continued career of “advocacy, mischief and great fun.”
The next panel focused on Dershowitz’s career as a teacher, and it was the panel I was on, chaired by Dean Minow (who brought out an enormous gavel). Most of the panelists were fellow teachers; two, including myself, were students (the other is a current one)--but there had been many other former students sprinkled throughout, from Feldman to Silverglate to CNN’s Jeffry Toobin, who would appear on the day’s closing panel.
One of the highlights was Steven Pinker, the famous professor of cognitive science (whom I first met in the car on the way together with Dershowitz to a “debate” with former President Jimmy Carter at Brandeis University). He spoke about how he and Dershowitz co-taught a course on taboo (which my wife happened to take), in response to controversy over Larry Summers’s controversial remarks about women’s abilities.
The broader point, was to address the question of why people in a free society still limit what they say. “Why can’t we just say what we mean?” Pinker asked. He related a story about how he and Dershowitz had invited Summers to be the final, surprise guest lecturer. Summers arrived late, saying: “I can’t imagine why you would have someone like me lecturing this course.” Dershowitz quipped: “Maybe that was the problem.”
Following my remarks--where I touched on many of the points made in my blog earlier that day--Alan Stone, a professor in psychiatry and law, spoke of the five decades in which he had taught with, and known, Dershowitz. What made Dershowitz so effective as a teacher, he said, was that while most professors want to be judges or philosophers, Dershowitz speaks to students as a practitioner--and therefore speaks to all of them.
“There is only one Alan Dershowitz,” Stone said. “There will never be another.” He spoke movingly of Dershowitz’s adversarial style and how it enlivened the classroom experience. In one case, a student had been so irritated by Dershowitz’s questioning that he sat in the second row and smoked marijuana (smoking was allowed in class in those days!) for two weeks. Today, he considers Dershowitz his legal role model.
That was followed by a tribute from Dean Minow, and another legendary professor, Charles Nesson, who spoke of his awe at Dershowitz’s skill in argument, saying he had essentially created a new form of argument that bore his stamp. Nesson asked whether Dershowitz might consider lending his name to a “Dersh-o-bot” that the school could develop to interact online with students after his retirement, and teach them to argue.
Dershowitz responded by reflecting on what it meant to retire from teaching--not just losing an element of his daily routine, but losing a daily interaction through which he could express ideas that he would not have the time or opportunity to commit to print. Fate, he said, decreed that most scholars die before they express their full knowledge. The challenge, he said, is to keep teaching and learning, in other ways, regardless.
The final panel of the day focused on Dershowitz’s life as a public intellectual. Leading off was Canada’s Irwin Cotler, the international human rights advocate. He spoke about Dershowitz’s lifelong commitment to justice--which, Cotler said, sprang not just from high-minded idealism but from an intense empathy with the victims of injustice. In that regard, Dershowitz challenged authority “from an unparalleled reservoir of knowledge.”
Cotler noted that Dershowitz’s opinions and ideas covered nearly every conceivable subject: “You are always writing in all of these areas whenever you are writing in one of these areas.” In public dialogue, he said, Dershowitz brought “compelling moral clarity” as well as a commitment to dialogue with people who held other points of view--from standing up to the Soviet Union, to fighting against the forces of political correctness.
Next was Rabbi Yitzchak Greenberg, who spoke specifically about Dershowitz’s role as a Jewish public intellectual, and “the relationship between his Jewish identity and his public wisdom.” Dershowitz spoke to many aspects of Jewish life, he said, but also to “non-Jewish Jews,” those who felt some degree of alienation from the community but some attachment to their heritage as a guide towards universal truths and values.
In his defense of Israel, Greenberg noted, Dershowitz had not merely made a particular defense of a “Jewish” cause, but had expressed both the universal and the particular, defending the broader cause of civil and human rights in protecting Israel’s security--and pushing it, always, to exemplify the highest humanitarian ideals in practice. In that way, he had filled a unique role as a Jewish intellectual in the American public sphere.
The following speaker was not other than Geraldo Rivera of Fox News, who opened by contrasting Dershowitz with Allan Bloom--not because Dershowitz is liberal and Bloom conservative, but because of the clarity with which Dershowitz made complex theories accessible to the public. His example: the case of Klaus van Bulow, in which Dershowitz became the first lawyer to popularize forensic science in a successful defense.
That ability to articulate complex ideas concisely made Dershowitz a regular guest on Geraldo’s programs. “To watch as he developed this new profession--the lawyer as television pundit--was so extraordinary.” Before, Geraldo said, lawyers had largely been excluded from public debate and talk shows. After Dershowitz, the law came to life for millions of Americans--through the O.J. Simpson case and so many more since then.
“He is the first great TV lawyer. He is a lawyer, an author, an intellectual and all the rest of it--but man, that guy can deliver a sound bite,” Geraldo concluded. Next was lawyer Kenneth Sweder, a fixture in the Dershowitz intellectual circle, who spoke about the keys to Dershowitz’s public advocacy: respecting the intelligence of the audience, respecting the diversity of views, and being honest about his own opinions.
Sweder said that one moment stood out--President Carter’s invitation to speak at Brandeis, which Dershowitz followed (Carter refused to debate). Sweder recalled the Q&A, when Dershowitz was challenged by a Palestinian woman about West Bank checkpoints. Dershowitz replied respectfully that if there was a choice between inconveniencing her and saving a family from terror, he would choose the former.
Next was Toobin, who recalled his experience as a criminal law student in Dershowitz’s class in his first year of law school. Dershowitz was emerging as a legal figure in the von Bulow case. In response to hate mail addressed to Dean James Vorenberg, asking why he allowed Dershowitz to “make an ass of himself” on TV, Vorenberg had replied: “Because it gives me pleasure.” Dershowitz mounted it on the wall of his office.
Toobin dismissed--to laughter in the audience--that Dershowitz had taken up the O.J. Simpson case out of a sense of injustice that might befall the defendant. Instead, he said that Dershowitz had seen an opportunity to educate the public about the legal process and criminal justice. In case after case, he said, Dershowitz has continued to do so--and to be a voice for the defense, noting the Eliot Spitzer case among others.
Wrapping up the panel, and the afternoon, was Judge Martin Wolf, a former federal district judge in Massachusetts. He recalled a phone conversation in June 1998 with Dershowitz in which he discussed his decision in the Whitey Bulger case, an event that Geraldo had commented upon during his television show: “That judge must be one pissed off hombre.” (The Bulger case, of course, remains in the headlines today.)
Wolf spoke about his recent appearance with South Africa’s Constitutional Court Justice Albie Sachs, who recalled that when Dershowitz had visited, he had written to all of the justices on the court saying that he would be able to meet with them for an hour--at most. Other justices recoiled at the suggestion, but Sachs did meet with Dershowitz, and built a relationship with him--and through him, American jurists like Stephen Breyer.
Through a series of anecdotes about contentious debates Dershowitz had undertaken in his long career, Wolf described his ability to “engage public figures in a way that gets them to respond.” Referencing Dershowitz’s earlier comments about personal mortality,” Wolf wished Dershowitz many years more, and closed with a poem by Emily Dickison: “The Poets light but Lamps/Themselves—go out/The Wicks they stimulate...”.
In his response, Dershowitz noted that his general public reputation had suffered for his advocacy for Israel--placing him, in the minds of many young people, alongside an array of “neoconservatives, Ziofascists” and other epithets. “I will not change my views on Israel. I will not back down. My reputation be damned. Let the truth come out,” he said. Only facts, not mistaken perceptions of him as a conservative, would dictate his views.
The afternoon concluded with a series of video tributes, including greetings from Elena Kagan, Benjamin Netanyahu (“Alan Dershowitz can’t retire!”), Antonin Scalia (“Alan...is a shinkicker”), Stephen Breyer, Rabbi Jonathan Sacks, Natalie Portman, Gerald Shargel, Guido Calabresi, Larry David, and others. A fitting tribute to a lawyer, scholar, teacher, author and friend who will long continue to inspire generations of Americans.