The Right Coast

June 22, 2004
Guido speaks out
By Tom Smith

Not that it makes me an expert, but I took torts from Guido [Calebresi] back in 1981 (that's not as long ago as it sounds). With his recent remarks comparing Bush to Mussolini and Hitler, Guido, who is now a judge on on the Second Circuit, has rather put his foot in it.

It's not the first time. Every year at Yale we had the Yale Law Revue in which students displayed their considerable talents in song and dance routines that satirized professors, often savagely. For example, one poor professor who had failed to get tenure but stayed on a few years in increasingly less elevated administrative positions was depicted as pushing a broom around the halls. Ouch. To the tune of Elvis Costello's "My Aim is True", a lovely black woman with a great voice crooned to Bruce Ackerman, "I hear you moved to Riverdale/that's expensive real estate/ Helluvaway to bring Justice to the Liberal State" or words to that effect. Bruce Ackerman had left Yale in a pout to go to Columbia because Yale had not given his wife a job. He came back when they did. Ackerman's big book at that time was called "Justice and the Liberal State." Maybe you had to be there. Word had it that the lyrics "Ackerrrrrrman, We all love you" were substituted after protests for "Ackerrrrrman, My favorite Jew." I'm telling you, it was rough stuff.

Anyway, the song about Guido was set to that country tune The Gambler (You gotta know when to hold 'em, etc.) The punch line of the song, whose lyrics I cannot recreate, was Guido's telling his torts class that his senior colleague Quentin Johnstone was an idiot, and no one could take a class from him if they could help it. Guido had gotten straight A's in law school except (cue music) "for that C he got in Property, in 1958." On a law school faculty, it's pretty unheard of to tell your class to avoid a senior colleague because he's a fool. Was QJ a fool? Well, he's dead now, I'm not Guido, and I have no comment.

Like half the world, I have a soft spot for Guido. His politics are the usual Yale liberal, but in Guido they seem more comical than threatening. Also, I think federal judges ought to be able to say controversial things. A federal judge ought to be able to say Roe v. Wade was the worst case of Supreme Court legal malpractice since Dred Scott, if that's what she thinks. She's not saying it's not the law; she's just saying it's stupid. Guido was not saying that Bush v. Gore was a nullity; I infer he was saying it was wrongly decided. If he refused to be bound by it, that would be another matter. Yes, yes, it's not very judicial. But not every single judge should talk the legal version of Greenspanese. That would be boring.

No one should infer from this that I was one of Guido's little lackies. He always treated me the way a PETA member might treat an insect in his house. Benignly, but there was no ambiguity about our relative positions. He once wrote a letter of recommendation for a friend of mine whose parents were immigrants. Of him, I was told Guido opined "X is a remarkable student, especially when you consider that his parents are peasants." In Guido's world, there are a lot of peasants. You can be insulted by this, or you can think that one of the charms of aristocracy is that it allows a few people to say things no one else would dare to say. I think Guido must have given up any hope he had for the highest court -- and you have to admit there's something wrong with a world where there is a Justice Souter and no Justice Guido -- so now he really can say what he thinks. Personally, I think somebody should host a conference on Bush v. Gore, constitutional succession, and related topics, and invite Guido to speak. What wasn't incomprehensible would be very interesting.

UPDATE: A loyal reader writes to inform me my property professor QJ is still alive. I'm glad to hear it, and wonder how I got it into my head that he had died. In any event, all the more reason to neither confirm nor deny Guido's excessively candid appraisal of him. Reader also reports that when he was at YLS, the revue featured Dean Tony Kronman morphing into Dirk Diggler of "Boogie Nights." If you took a class from Tony K and you have seen Boogie Nights, you will appreciate that this is very funny. Not terribly nice, but funny.