Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship

Abstract

It is in fact about our profession that I wish to meditate in this short essay, provoked by the painful and ill-fated nomination of Lani Guinier. I want to focus on a cavalier but wickedly penetrating remark of Senator Joseph Biden, the chair of the Senate Judiciary Committee that was to pass on Guinier's candidacy. After reading Guinier's scholarly articles, Biden said: If she can come up here and explain herself, convince people that what she wrote was just a lot of academic musing, who knows? ... I suppose it's conceivable that she could be confirmed. If she comes up here and says she believes in the theories that she sets out in her articles and is going to pursue them, not a shot. Biden's comment candidly questions the social significance of writing that is avowedly "academic." It invites us to inquire into the nature of our vocation, to ask for whom and for what purpose we write. Biden uses the adjective "academic" dismissively, evoking the genial condescension with which mainstream culture regarded intellectual "eggheads" in the 1950's: Academics are "theoretical," "out-of-touch," "impractical." Lost in abstraction, they cannot be entrusted with "real world" tasks. But of course anyone with any knowledge of Lani Guinier would know that none of these characterizations could be applied to her. She was a tough, real-world, hard-driving litigator; she remains an articulate, hard-edged, smart, and persistent scholar. So Biden more probably meant his use of the word "academic" to apply not to Guinier personally, but to the genre in which her work appeared. He seems to have meant that law review articles as a form can be dismissed as merely "academic." We can read Biden as establishing an opposition between the abstract and impractical work of law professors who write for law reviews, and the real and practical work of Washington officials who engage in the project of law creation and enforcement. The question I want to pursue is how we in the legal academy ought to regard this opposition.