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The politics of “grief”

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granero

Body of Manuel Granero, bullfighter killed in the Madrid ring, May 1922. Hemingway’s caption to this photo in Death in the Afternoon reads: “Only two in the crowd are thinking about Granero. The others are all intent on how they will look in the photograph.”

I

Press release, Georgetown University Law Center

February 13, 2016 — Georgetown Law mourns the loss of U.S. Supreme Court Justice Antonin Scalia (C’57), who died in Texas at the age of 79. “Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,” said Dean William M. Treanor in a statement.

“Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few Justices have had such influence on the way in which the law is understood. On a personal level, I am deeply grateful for his remarkably generous involvement with our community, including his frequent appearances in classes and his memorable lecture to our first year students this past November.”

Justice Scalia most recently visited the Law Center on November 16, when he delivered a 20-minute talk on education to the first-year class. His talk was followed by more than 30 minutes of responses to written student questions. How much influence do Scalia’s law clerks have on his opinions? “More than my colleagues,” the justice replied, to great laughter.

“The justice offered first-year students his insights and guidance, and he stayed with the students long after the lecture was over,” Treanor said. “He cared passionately about the profession, about the law and about the future, and the students who were fortunate enough to hear him will never forget the experience. We will all miss him.”

See some of Justice Scalia’s visits to Georgetown Law over the years here. Read more from Georgetown University here.

This press release led Michael Seidman of the GULC faculty to send the following email to the rest of the faculty:

Mike Seidman to Dean Treanor and faculty:

Our norms of civility preclude criticizing public figures immediately after their death. For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the “Georgetown Community” in the press release issued this evening do not reflect the views of the entire community.

Gary Peller of the GULC faculty then sent an email to the rest of the faculty, responding to both the press release and Seidman’s response. Three days after Scalia’s death, on February 16th, Peller sent a modified version of this email, along with a copy of Seidman’s, to GULC’s 2,000 or so students, as well as the school’s staff:

Dean Treanor, Staff, Students, and Colleagues:

Like Mike Seidman, I also was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.

I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the “community” should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the “culture wars” he often invoked. In my mind, he was not a “giant” in any good sense.

It is tricky knowing what to say when a public figure like Scalia, or the late Robert Byrd, or other voices of intolerance, meet their death. But as an academic institution, I believe that we should be wary of contributing to the mystification of people because of the lofty official positions they achieved. I don’t want to teach our students to hold someone like Scalia in reverence because he’s a “Supreme Court Justice.” Our proximity to official Washington provides an opportunity to see many public officials close-up, and to learn that there is nothing special that titles bestow–even a Supreme Court Justice can be a bigot, and there is no reason to be intimidated by the purported “brilliance” that others describe because, when you have a chance to see and hear such people close-up, the empowering effect is often, as it should be, de-mystification. (I was happy to meet Warren Burger as a law student for this very reason). We should never teach our students to be obsequious to those with power.

The “Georgetown Community” could mean many things. In one sense, it is simply a legally constituted set of formal relations, and in that sense perhaps “the Dean,” duly appointed by “the President,” speaks for that “institution” of formal legal relations.

But there is also a lived community that we inhabit, within the interstices of the formal and contractually defined roles, a community that exists in our relations with each other and with our co-workers and our students, a community that is constituted in our hallways and class rooms and lunch rooms, and in our affection for and commitment to one another, and, for many of us, a vision of how we could all be together in the law school, disagreeing often but always trying to be sensitive and empathic to all members of our community.

That is the “Georgetown Community” that I feel a part of, a lived community of tolerance, affection, and care that so many have built for so long here. That “community” would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obseqiuosness. [sic]

Sometimes the two senses of community might merge–the formal, legal institution might be so at one with the lived community that its legitimacy to speak for the “community” flows organically. But that is not our situation.

Sincerely,
Gary

The following day, Dean Treanor sent out a response to Peller’s email to the school’s faculty, staff, and students:

From: Dean William M. Treanor
Date: Wed, Feb 17, 2016 at 3:59 PM
Subject: Justice Scalia
To: All Students , All Faculty and Staff

To the Members of the Georgetown Law Community,

I was personally saddened by Justice Scalia’s death Saturday. He was one of the most important legal figures of our time, and he cared deeply about the law and the Court. As a legal scholar, even though I often disagreed with them, I consistently learned a great deal from his intellectually powerful opinions and scholarship. As a member of this community, I was grateful to him for his remarkable generosity to us. Over the years, he was a frequent guest in our classrooms and in our lecture halls. I will never forget how, after he spoke to our first year class in November, while we had expected him to leave immediately, he stayed in the Health and Fitness lobby long after the talk was over to speak with students and engage with them on any topic they wanted to discuss. His presence here on so many occasions reflected a striking commitment to the next generation of lawyers. I know how many members of this community are experiencing a very personal sadness at this time because they knew him, appeared before him as advocates, worked with him. My heart goes out to his family and countless friends at this time of loss.

I issued a statement on Saturday saying that the law school community mourned the Justice’s death. As you may know, some faculty have disagreed with my statement. I am writing now to reaffirm my belief that this a time for us to mourn. Justice Scalia was an individual who provoked strong and divergent views; the debate about his legacy is long-standing, and it will continue for many years. But this moment is a moment of grief. It is a time of loss and a time when many in our community are in pain. It is a time for mourning.

I would like to express again my sadness at the Justice’s passing and to extend my condolences to his family and friends.

Sincerely,

Bill Treanor

A few hours after Treanor sent this email, two other GULC professors, Nicholas Rosenkranz and Randy Barnett, sent the following message to the faculty, students, and staff:

From: Campus Broadcast
Date: Wed, Feb 17, 2016 at 10:56 PM
Subject: An Open Letter to the Georgetown Law Community
To: Campus Broadcast

An Open Letter to the Georgetown Law Community from Professors Randy Barnett and Nick Rosenkranz

[Note in response to the email sent to the entire Georgetown Law community, in violation of the stated policies governing such emails (here and here), we sought and received permission to post this response in an attempt to remedy the harm caused by the initial breach of our norms.]

From Professor Nick Rosenkranz:

The news of Justice Scalia’s death was a terrible blow to me. He was a hero of mine ever since law school. When I interviewed to clerk for him, I was too nervous to get the job. But in the following years, I had the honor of getting to know him. We had lunch together at his favorite pizza place, AV Ristorante. He spent an hour with me discussing the thesis of my first article. We sat next to each other at a lunch in New York, a lunch in London, and a dinner at the National Archives. I once argued before him at the Court. He cited my amicus brief in his concurrence in Bond v. United States. We once sang a song together, believe it or not: Oh, Danny Boy.

These may sound like small moments, and they were. But I remember each of them vividly, because Justice Scalia was a hero of mine. These were some of the greatest highlights and proudest moments and happiest memories of my legal career. It is devastating to lose a loved one, but, in a way, it is just as devastating to lose a hero. I was in shock and mourning on Saturday. I suppose I still am.

From Professor Randy Barnett:

I first met Justice Scalia when I left the Cook County States Attorney’s Office to become a research fellow at the University of Chicago Law School. There I was privileged to join the faculty “round table” for lunches, where then-Professor Scalia was one of the most engaging of discussants. Because my research was on contract law theory and I aspired to be a contracts professor, he graciously allowed me to sit in on his class the day he taught the Peevyhouse case.

Although I argued the medical marijuana case of Gonzales v. Raich before the court in 2004 – and was deeply disappointed when he voted with the more progressive justices against my clients – it was not until joining the Georgetown faculty in 2006 that I got to know him much better in a variety of venues. These include his visiting my seminar of 22 students to discuss his new book, along with three public appearances at the Law Center where I introduced him. Although I respected and admired him greatly, I perhaps did not appreciate the depth of my affection for him until I heard of his death.

Like Nick, I was in shock and mourning, but thanks to the insensitive acts of a member of our faculty, neither we nor our students have been allowed to grieve in any type of peace.

From Professors Rosenkranz and Barnett:

The afternoon of the Justice’s death, Georgetown Law issued a statement on its home page: “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia.” The statement was short, and anodyne, with just a few nice personal recollections by the Dean. This is a standard procedure: Georgetown generally issues such a statement upon the death of any Justice, and several top law schools issued similar statements upon the death of Justice Scalia. We read it and thought nothing of it.

At 10:00pm that evening, Professor Mike Seidman sent the following email to the entire faculty on our private email list: “Our norms of civility preclude criticizing public figures immediately after their death. For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the ‘Georgetown Community’ in the press release issued this evening do not reflect the views of the entire community.” To this, no member of the faculty voiced any response or objection, either on our list or to either of us privately.

Then, two days later, Professor Gary Peller wrote to echo and amplify Mike’s point:

Dean Treanor and Colleagues:

Like Mike Seidman, I also was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.

I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the “community” should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the “culture wars” he often invoked. In my mind, he was not a “giant” in any good sense.

. . .

[T]he “Georgetown Community” that I feel a part of … would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obseqiuosness. [sic]

. . .

Sincerely,

Gary

Both Prof. Seidman and Prof. Peller put the phrase “Georgetown Community” in quotation marks, but it actually appears nowhere in the press release. The only sentiment in the press release that is plausibly attributed to the Georgetown community, as opposed to the Dean, appears in the title: “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia.” Professors Seidman and Peller thus thought it important to let their colleagues know, immediately, that they do not. Within minutes, Randy then replied to the list:

Gary writes:

“But there is also a lived community that we inhabit, within the interstices of the formal and contractually defined roles, a community that exists in our relations with each other and with our co-workers and our students, a community that is constituted in our hallways and class rooms and lunch rooms, and in our affection for and commitment to one another, and, for many of us, a vision of how we could all be together in the law school, disagreeing often but always trying to be sensitive and empathic to all members of our community.”

Given that I, for one, respected and admired Justice Scalia even where I disagreed with him strongly (and believe he was none of the things that Gary listed in his email although he had his personal faults like everyone else), and given that I mourned his loss on Saturday to the extent that I turned down an appearance on the CBS Evening News because I could not gather my emotions and collect my thoughts in time, I believe that, by his message, Gary has violated his own professed standard of sensitivity and empathy. Whatever offense the Dean’s press release may have caused him and others is nothing compared to hurt his message has caused me this afternoon.

Perhaps Nick and I are the only ones who felt this way about Justice Scalia on Saturday. That’s perfectly OK. But were Georgetown Law a genuinely diverse intellectual institution, I doubt any faculty member could have been so callous on this occasion.

I am now going to try to go back to what I was working on.

Minutes later, Professor Peller emailed Randy privately:

Randy,

I am so sorry to have caused you hurt, Randy. I did consider such a possible effect on those with affection for J. Scalia, and thought that waiting until today would be appropriate. Please accept my apology, as I have great affection and respect for you as a colleague.

Gary

Soon after, a few professors posted messages to the faculty defending the Dean’s message to varying degrees, and several more expressed their sympathies off list. But a third professor chimed in to agree with Professors Seidman and Peller.

Now, as a right-leaning professors in legal academia, we have developed quite thick skin. We had to. We would have thought that we were inured to this sort of thing. Yet we admit that we found these emails deeply upsetting. They caught us in a moment of particular weakness and vulnerability.

For one’s colleagues to write, within hours of the death of someone one knows, likes, and admires, that he was a “defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic,” is startlingly callous and insulting, not only to his memory but to those of us who admired him. To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead – is simply cruel beyond words. But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it.

Unfortunately, the next day, recognizing full well that he would “cause … hurt [to] those with affection for J. Scalia,” and in violation of Georgetown email policy, Prof. Peller forwarded his email and Prof. Seidman’s to the entire student body at Georgetown Law, some 2000 students. Of those, at least a few hundred are conservative or libertarian. These students received an email yesterday, from a Georgetown Law professor, just three days after the death of Justice Scalia, which said, in effect, your hero was a stupid bigot and we are not sad that he is dead.

Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?

We note that Prof. Peller’s email to the student body was posted at 3:05pm. Within 90 minutes, sometime before 4:37pm (when the first comment was posted), Peller’s email was published by Tikkun Daily, a website for which he writes, under his bi-line, accompanied by a 600 word “Editor’s Note” by Michael Lerner, under the title “Powerful Illusions: A Critical Look at the Legacy of Supreme Court Justice Antonin Scalia.” Clearly, Professor Peller’s intent was to generate a public controversy, with him at its center. The “hurt [to] those with affection for J. Scalia” – including hundreds of Georgetown students – was either intended by him or was acceptable collateral damage.

We waited to publish any response until Dean Treanor could have a chance to react. We appreciated the fact that he was in a delicate position. And we spoke to him at length in separate phone conversations about what we thought an appropriate response from the administration should be.

To help him think the question through, Nick first tried to put the issue in context, reiterating that this incident is symptomatic of a larger problem in academia: the utter lack of intellectual diversity among faculty, and the deep intolerance for views that dissent from the liberal orthodoxy. This incident can only be understood against that backdrop. There are some people on earth who should not be mourned when they die. Adolf Hitler was such a person. Justice Scalia was not. (See, for example, the moving tributes by Harvard law professor Cass Sunstein and Justice Ruth Bader Ginsburg.)

The problem is that the center of gravity of legal academia is so far to the left edge of the political spectrum that some have lost the ability to tell the difference. Only on a faculty with just two identifiably right-of-center professors out of 125, could a professor harbor such vitriol for a conservative Justice that even Justice Ginsburg adored. Only on a faculty this unbalanced could a professor willfully or knowingly choose to “hurt … those with affection for J. Scalia,” including countless students, just days after the Justice’s death. If more of us were here, the impropriety of this act would have been far more obvious, but also less threatening to our students.

To suggest the appropriate response, each of us independently offered the following analogy: What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall — saying that he was a bigot, and his “intellectual positions were not brilliant but simplistic”? Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?

Nick also reminded the Dean about the recent controversy at Yale, which began with an email as well. In that case, a faculty member sent an email to the student body that some subset perceived as a “micro-aggression”: perhaps adults can be trusted to choose their own Halloween costumes. In our case, a faculty member sent out an email to the student body — in violation of Georgetown policy — which was clearly the most grievous imaginable macro-aggression against all conservative students and faculty: in effect, your hero was a stupid bigot, and we are not sad that he is dead.

In the Yale case, students protested and demanded substantial change, and the President of Yale took several dramatic actions to remedy what he perceived to be a climate of intolerance on campus, issuing this extraordinary statement. Nick argued that this incident calls for remedies at least as substantial, and an equally powerful statement.

The Dean has issued no such statement. In his email today, he has reiterated his personal feelings of loss, which we appreciate. But now he quite pointedly and understandably declines to speak on behalf of the “Georgetown community.” Nor does he acknowledge that this incident is symptomatic of a deeper problem. He says only that “it is a time for mourning.” But he makes no mention of Prof. Peller’s callous behavior, in violation of Georgetown policy. He offers neither apology nor reassurance to the hundreds of students who were deeply hurt by this incident. Perhaps, after this incident, the Dean is now wary of speaking on behalf of Georgetown Law. Perhaps, this too is what Prof. Peller desired to achieve, in which case he has again succeeded.

Sadly, as just two professors on a faculty of 125, we are in no position to offer much reassurance to our students, beyond reporting that we have heard on the faculty email list, and privately, from a few of our Georgetown colleagues who objected to these messages. All we can do, really, is convey our solidarity with our wonderful students. We share your pain. We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.

But make no mistake: Civil discourse at Georgetown has suffered a grievous blow. It is a time for mourning indeed.

The Black Law Students Association subsequently sent a message to the same audience of Georgetown’s faculty, students, and staff:

An Open Letter to the Georgetown Law Community

The Black Law Students Association takes issue with some of the responses and email exchanges shared with the entire Georgetown University Law Center student body in the days following Justice Scalia’s passing.

We recognize that many in the legal community, including some in our own organization, mourn the death of the late Justice Antonin Scalia, an influential and widely respected legal mind. We also understand that his passing has left many Georgetown Law students deeply saddened and we offer our sincere condolences to these students.

While we support an individual student’s choice to mourn, it must also be acknowledged that Justice Scalia’s legacy affects us in vastly different ways. As a result, some of the viewpoints expressed in the email exchange were disheartening for many in our membership. It is our hope that we can be candid with you in this letter regarding those disheartening sentiments, and as a result we can hopefully foster an environment of greater inclusiveness at Georgetown Law.

One particular email response from Professors Nick Rosenkranz and Randy Barnett decries the lack of intellectual diversity at Georgetown, citing the experiences of conservative students in the wake of Professor Gary Peller and Louis Michael Seidman’s emails:

“Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?”

This paragraph could be edited slightly, inserting black students for conservative and libertarian students, and the effect would be the same.

In fact, this description is nearly identical to the lived and voiced experiences of many students of color at our institution.

Many Black students were also “traumatized, hurt, shaken, and angry” as “22-year-old 1Ls” when the law school declined to make unprompted timely statements last school year regarding the uptick in racialized policing, law enforcement, and the lack of indictments of violent police officers.

Many Black students were also “traumatized, hurt, shaken, and angry,” when fact patterns on a practice exam directly referenced the facts of the Trayvon Martin tragedy.

Many Black students are also “traumatized, hurt, shaken, and angry” every time a classroom micro-aggression, from a professor or student, is dismissed until it escalates into something more systemic.

Many Black students are also “traumatized, hurt, shaken, and angry” as real progress on institutional anti-racism and administrative equity and inclusion is constantly delayed.

If this one email exchange exacerbated frustrations of conservative or libertarian students, imagine the impact of continuous antagonistic classroom lectures and insensitive remarks about issues that directly affect the lives of the Black students here at the Law Center. How do we speak up in class? What reasoning will be acceptable on our exams?

If our community can empathize with the hostile environment conservative students will reportedly enter as the result of the comments made by two liberal professors in an email, then they cannot turn a blind eye to the calls for sensitivity training and a concerted effort to make faculty aware of the issues that face minority students.

Many Black students are currently “shaken and angry” that Professors Rosenkranz and Barnett, two of our most respected professors, would make a callous, ill-formed analogy to the legacy of Justice Thurgood Marshall in their email response.The email states:

“What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall — saying that he was a bigot, and his intellectual positions were not brilliant but simplistic? Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?”

Justice Marshall was a tireless pillar of strength who sought equality, justice and fairness—who used his voice to uplift others and celebrate their differences to ensure that all had access to diverse, quality education. This analogy was in the poorest of tastes, especially as the country, our organization, and the law school celebrates Black History Month. It also added an additional unnecessary layer of hostility and exacerbated the racial undertones present in this entire call for mourning and respect.

Many Black students are also “shaken and angry” about comments Justice Scalia stated just months before his untimely death:

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

“They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them,” Scalia said. “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less.”

If the late Justice Antonin Scalia were correct in his assertions, if members of our organization were relegated to a “less-advanced school,” the Black Law Students Association at Georgetown might not even have a vibrant presence on this campus to mourn his passing.

In the same spirit of understanding and empathy called for by professors, and given Justice Scalia’s often polarizing, offensive and intolerant stances, we ask that an individual’s decision of whether or not to mourn be equally respected.

Until today, many of our colleagues at our institution could not empathize with the statements of, or understand the sentiments expressed by many Black students at Georgetown Law concerning marginalization.

We were advised that law school classrooms were not meant to be a “safe space.”

We hope that in the future, professors of all political ideologies and leanings, through more collegial discourse, will offer their solidarity, strength, and support to all marginalized students fighting for greater representation, recognition, and inclusion at Georgetown Law.

However unsettling, we must not allow this emotionally-charged discourse amongst legal scholars to distract us from our purpose. There is far too much work to be done. Rather than mourning the historical figures of all races, religions and political ideologies who fought in true solidarity so that we could study the law in desegregated and diverse classrooms—we will honor them.

We will study longer. We will fight harder. We will earn our degrees. We will use the law to fight for progress—to become the next litigator, congressperson, judge or U.S. Supreme Court Justice.

A letter expressing these sentiments was also sent directly to members of the Georgetown Law administration. We ask that the university and student government expeditiously continue their individual and joint efforts to support inclusivity, encourage diversity of thought in the classroom, and denounce various forms of exclusion.

Note: This statement does not reflect the sentiments of all Black students or students of color on the campus of Georgetown Law.

[emphases in original]

II

No one ever told me that grief felt so like fear. I am not afraid, but the sensation is like being afraid. The same fluttering in the stomach, the same restlessness, the yawning. I keep on swallowing.

At other times it feels like being mildly drunk, or concussed. There is a sort of invisible blanket between the world and me. I find it hard to take in what anyone says. Or perhaps, hard to want to take it in. It is so uninteresting. Yet I want the others to be about me. I dread the moments when the house is empty. If only they would talk to one another and not to me.

There are moments, most unexpectedly, when something inside me tries to assure me that I don’t really mind so much, not so very much, after all. Love is not the whole of a man’s life. I was happy before I ever met H. I’ve plenty of what are called ‘resources.’ People get over these things. Come, I shan’t do so badly. One is ashamed to listen to this voice but it seems for a little to be making out a good case. Then comes a sudden jab of red-hot memory and all this ‘commonsense’ vanishes like an ant in the mouth of a furnace.

C.S. Lewis, writing in his journal a few days after the death of his wife.

Ivan Ilych had been a colleague of the gentlemen present and was liked by them all. He had been ill for some weeks with an illness said to be incurable. His post had been kept open for him, but there had been conjectures that in case of his death Alexeev might receive his appointment, and that either Vinnikov or Shtabel would succeed Alexeev. So on receiving the news of Ivan Ilych’s death the first thought of each of the gentlemen in that private room was of the changes and promotions it might occasion among themselves or their acquaintances. . .

Besides considerations as to the possible transfers and promotions likely to result from Ivan Ilych’s death, the mere fact of the death of a near acquaintance aroused, as usual, in all who heard of it the complacent feeling that, “it is he who is dead and not I.”

Each one thought or felt, “Well, he’s dead but I’m alive!” But the more intimate of Ivan Ilych’s acquaintances, his so-called friends, could not help thinking also that they would now have to fulfill the very tiresome demands of propriety by attending the funeral service and paying a visit of condolence to the widow.

Leo Tolstoy, “The Death of Ivan Ilych”

And to the degree that the individual maintains a show before others that he himself does not believe, he can come to experience a special kind of alienation from self and a special kind of wariness of others.

Erving Goffman, “The Presentation of the Self in Everyday Life”

One of the peculiarities of social life is its recurrent demands for ritualistic displays of various emotions that the persons from whom the displays are expected do not in fact feel. Chief among these are displays of “grief” when someone dies. The quotation marks are intended to signal the difference between “grief” and genuine grief, which is a rare and devastating emotional state.

“Grief,” by contrast, is extremely common and in no way interferes with ordinary life, since it is the simulation of an emotional state, rather than the state itself. This simulation is often consciously strategic, but on other occasions its strategic nature is hidden, in part or even completely, from those who deploy it, indeed to the point where they manage to convince themselves that they are actually experiencing grief rather than “grief.” (A moment of real grief would demolish this illusion, just as surely as an instant of real pain or fear is unmistakably different from feigned displays of those emotions.)

The current controversy at Georgetown over the appropriateness of various responses to Antonin Scalia’s death illustrates this well.

Dean William Treanor’s initial statement was, in my view, inappropriate, in that it took a deeply controversial political position, i.e., the claim that Scalia was “a giant in the history of the law, “a brilliant jurist” etc., and presented this as the position of the institution itself. By way of analogy, it is or ought to be self-evident that it would be inappropriate for someone in Treanor’s position to declare that “Georgetown Law” was mourning the passing of Bill Clinton, given Clinton’s status as “one of the greatest presidents in American history.” (Clinton is also a Georgetown grad).

Contrary to the claims of Profs. Barnett and Rosenkranz, the statement was not “anodyne” (that is, inherently inoffensive, except perhaps to the hyper-sensitive). Barnett and Rosenkranz consider Scalia a great justice; a lot of their colleagues consider him a terrible one, and people in the latter category were understandably unhappy to see the institution to which they belong, via the ex cathedra pronouncement of its dean, taking the former view of the matter.

In any case, it seems to me that, under the circumstances, Seidman’s private message to the dean and the rest of the faculty was warranted and appropriate.

Peller’s email to the entire law school is a different matter. First, it extends the unfortunate tradition of heterosexual white men telling “people of color, women and sexual minorities” how they feel, or are supposed to feel, about something. It also extends the unfortunate academic tradition of taking a point that his colleague had already made in a tactful, brief, yet unmistakably clear way, and making it again at great length and specificity, thus ensuring that he would cause the maximum amount of offense among those who disagreed with him.

Treanor’s response to Peller’s email is an improvement on his original message, since he makes clear he is now only speaking for himself, rather than “Georgetown Law.” But it’s also a prime example of the public performance of “grief,” with its claim that “this a time for us to mourn. . . this moment is a moment of grief. It is a time of loss and a time when many in our community are in pain. It is a time for mourning.”

It’s not polite to say so, but this kind of thing is simply false through and through. Genuine mourning is a manifestation of genuine grief, which is an emotion that can arise only in the context of the most intimate personal relationships, which it’s clear none of the people bloviating on this subject ever had with Antonin Scalia.

Which brings us to Profs. Barnett and Rosenkranz. “It is devastating to lose a loved one,” Rosenkranz says, “but, in a way, it is just as devastating to lose a hero.” No, it isn’t. Again, this is emotional fakery, although it may well be so successfully internalized that it isn’t recognized as such by the performer of the ritual. The death of a virtual stranger one admires may be momentarily shocking, saddening, disturbing, demoralizing, etc., but it isn’t at all like the death of a loved one. After you lose a “hero” you wake up the next day, and it is still a day (almost) like any other:

But in the importance and noise of to-morrow
When the brokers are roaring like beasts on the floor of the
Bourse,
And the poor have the sufferings to which they are fairly
accustomed,
And each in the cell of himself is almost convinced of his
freedom,
A few thousand will think of this day
As one thinks of a day when one did something slightly unusual.

Barnett’s personal connection to Scalia was if anything even more tangential than Rosenkranz’s, but he too demands the privileges of genuine mourning be extended — and not merely to the two of them, but to “hundreds” of Georgetown law students: “Like Nick, I was in shock and mourning, but thanks to the insensitive acts of a member of our faculty, neither we nor our students have been allowed to grieve in any type of peace.”

Again, it’s not considered appropriate to point this out, but Barnett’s “grief” isn’t really grief: it’s a social and political pose, adopted — perhaps consciously, perhaps not — to squelch dissent from things such as Treanor’s ill-advised initial message, purporting to speak for the institution.

And of course in doing so he and Rosenkranz are providing role models for politically like-minded students, who are learning to make phony claims about being “traumatized, hurt, shaken and angry” by something as trivial as Peller’s email.

It’s difficult to say whether Barnett and Rosenkranz are to at least some extent intentionally parodying the wave of recent demands by college students to be provided with “safe spaces” and the like. Their reference to the Yale imbroglio suggests that possibility, as does their absurd analogy to Thurgood Marshall. (It should be unnecessary to point out that the difference between suggesting that Scalia was a bigot and that Marshall was is that the former suggestion is appropriately controversial, while the second would be, as far as I know, completely unsupported by any evidence whatsoever).

But even that analogy is a model of judiciousness in comparison to this:

There are some people on earth who should not be mourned when they die. Adolf Hitler was such a person. Justice Scalia was not.

This appears to be the “if you weren’t as bad as Hitler, people who disagree deeply with your legal and political views are required to mourn your death” test. Again, this an utterly fake invocation of the experience of grief, and the accompanying rituals of mourning, for the crassest of political reasons.

It’s unfortunate that Georgetown’s Black Students Association has played into the hands of Barnett and Rosenkranz:

Many Black students were also “traumatized, hurt, shaken, and angry” as “22-year-old 1Ls” when the law school declined to make unprompted timely statements last school year regarding the uptick in racialized policing, law enforcement, and the lack of indictments of violent police officers.

Again, it’s a breach of social norms to point it out, but I doubt this is actually true. What these students have learned is that the sort of histrionic claims of emotional vicitmization made by Barnett and Rosenkranz are politically useful. For example:

To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead – is simply cruel beyond words.

[emphasis added]

This is not how grownups are supposed to talk. The members of the BLSA have, for the most part, the excuse of youth on their side. The same can’t be said for Barnett and Rosenkranz.

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