Legal system Illegitimate That Renders Accused Defenseless

As published in Newsmax.

March 17, 2023.

Today we are witnessing the results of a decades-long effort by cultural Marxists to convert America’s most foundational institutions from their original missions into revolutionary organizations promoting an illiberal ideology.

This “long march through the institutions,” a phrase coined by Italian communist Antonio Gramsci (1891-1937), describes a strategy for subverting a society by controlling its schools, universities, courts, corporations, media and political parties.

Our undergraduate education system was the first to capitulate. Medicine, the media, the military, governmental bureaucracies, major corporations and the Democratic Party followed suit. And now, our legal system, created to protect the rights of individual citizens and promote equal justice, the rule of law and due process, is also under attack.

American law schools are being transformed from institutions encouraging open debate and discussion of all viewpoints into organizations intolerant of dissent. Promoting woke clerisy, they demand censorship, conformity and preferential treatment for certain groups in society.

The dominant leadership setting the agenda believes that certain minorities— people of color, women, illegal immigrants, gays, transgenders — have been systematically oppressed in our society, the sole cause of differences in everything from school grades to incarceration rates to income. And the only remedy is to protect these victim groups from criticism and discriminate in their favor (equity), irrespective of facts, logic or evidence.

Marxist ideologues reject our core legal values —the presumption of innocence, equality before the law, due process and our adversarial tradition wherein both sides in a dispute are represented vigorously by attorneys. Our legal system depends for its integrity on these bedrock precepts.

Since time immemorial, law schools have prepared their students to promote these core Constitutional values. Not so much anymore.

Traditional expectations about justice, impartiality and the presumption of innocence have capitulated to the dictates of race, gender and identity.

Attorneys defend terrorists, cop killers or rapists, even though this may be unpopular. Too many law students today, indoctrinated in critical race theory (CRT) and “social justice” dogma, believe that those they view as “guilty people” do not deserve the right of legal representation.

Rather than equal justice for all, CRT disciples demand that the scales of justice be tipped in favor of those they consider victims of society: Discriminate in favor of the “virtuous” oppressed.

Initially, these ideas didn’t find meaningful support within legal academia. And most people believed that student apostles would come to their senses once out in the real world. George Floyd happened and suddenly CRT and its racism are mainstream and mandatory.

According to The Wall Street Journal, the American Bar Association believes that law schools need to be more race-conscious, more politically correct and less intellectually diverse. The ABA now requires all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism” along with a mandatory legal ethics class which instructs students to “eliminate racism.”

Georgetown Law School compels all students to take a class “on the importance of questioning the law’s neutrality” and assessing its “differential effects on subordinated groups.” Law schools including UC Irvine, University of Southern California, Yeshiva University, Boston College and others have implemented similar requirements.

At Georgetown, the first few weeks of property law, traditionally focused on British common law, now are spent on structural racism and cultural appropriation, with students being taught that the history of American property law is "the history of dispossession and appropriation."

“Social justice” warriors now dictate who joins the faculty, what they teach, what they say outside of class and which students pass courses.

Georgetown law professor Ilya Shapiro was put on administrative leave for tweeting that Supreme Court Justice Ketanji Brown Jackson “will always have an asterisk attached” to her because President Biden promised to “only consider black women.” Shapiro’s point: We shouldn’t select justices based on race and gender.

In response, Georgetown students, our future lawyers and jurists, demanded a “cry room” where they could grieve and process Shapiro’s “racism and bigotry.”

University of Illinois Chicago law professor Jason Kilborn’s classes were cancelled and his career threatened for including an exam question with a bleeped out “N-word” in a hypothetical employment discrimination case, something he had included on exams for years.

At Santa Clara University School of Law, administrators rejected Kyle Rittenhouse’s acquittal on the charges of killing two and wounding another during a Kenosha, Wisconsin riot as “further evidence of the persistent racial injustice and systemic racism within our criminal justice system.”

At Yale Law School, an event with speakers from both the conservative Alliance Defending Freedom and the progressive American Humanist Association was violently disrupted by law students who opposed ADF’s right to exist and participate in the legal system because the organization is conservative and disputes the leftist gender fluidity doctrine.

Former Secretary of Labor Eugene Scalia expressed grave concern that “our elite law firms are hesitant to let their lawyers (take cases) that might generate criticism from left-of-center (individuals or clients).” Former U.S. Solicitor General Paul Clement wrote that he left Kirkland & Ellis because they told him to drop his Second Amendment clients or resign.

A legal system that discriminates in favor of one group over others forfeits its legitimacy. Without lawyers willing to defend unpopular clients or controversial issues, our Constitutional system of justice, admired worldwide, doesn’t work.

University of Pennsylvania law professor Amy Wax wonders how the rule of law can survive in this atmosphere. She warns that “the very principles of fair procedure and fair representation are under attack.”

Northwestern University constitutional scholar Andrew Koppelman cautions, “A society where accused people don’t get a defense … is a society you don’t want to live in. It’s a totalitarian nightmare.”

Today, we are witnessing a steady, pernicious bastardization of our legal system that threatens to render our Constitution illegitimate.