Nice guys finish last, Leo Durocher once quipped, spitting fire as manager of the Brooklyn Dodgers in the 1940s. It's hard not to think of that cynicism when one enters the warren-like office of Erwin Chemerinsky, his walls covered with hundreds of books on constitutional theory, civil procedure, legal history--and a framed photo of the greatest Dodger in baseball history, Jackie Robinson.
"I've lost much more than I've won," says Chemerinsky, the Alston & Bird Professor of Law and by all accounts the nicest guy ever to teach at Duke Law. Over the past year, he's batted 1-for-3 in the Supreme Court, losing a case on the Ten Commandments in government buildings--Van Orden v. Perry (2005)--and another on the violent restraint of abortion-Scheidler v. National Organization of Women (2006). The only victory came in Torry v. Cochran (2005), a defamation case. But you won't see him hanging up the cleats any time soon.
"Of course it's discouraging," he says in the slow, caring voice that has become his trademark. "On the other hand, I realize that I'm often fighting for unpopular causes, and I'm taking liberal positions at a time of very conservative courts. There are times when it feels devastating--[a] death penalty case, where my client was executed--but I think it's so important to keep on fighting."
The past year has been tough for Chemerinsky's causes. In January, he testified before the Senate against the appointment of Judge Samuel Alito, a nominee to the Supreme Court. (He also took part in an filibuster run by Duke Democrats on the Chapel Quad.) Despite Chemerinsky's efforts, Alito won his spot. As a plaintiff in the Solomon Amendment case, Rumsfeld v. Forum for Academic and Institutional Rights, Chemerinsky hoped to let law schools refuse military recruiters' entrance without losing federal funds. Again he lost, this time with a stinging 8-0 rebuke coming down in early March.
But Chemerinsky's biggest "no"--for Dukies at least-came straight from the horse's mouth. The University of North Carolina at Chapel Hill approached him with an offer of becoming the dean of the law school in January, a position he didn't even apply for, although 20 other legal high-fliers did. Duke Law waited on pins and needles as the star professor, who arrived in 2002 after 21 years at the University of Southern California, mulled it over. In the end, UNC didn't have the money he wanted to revolutionize the school, and Chemerinsky turned down the offer.
"I asked for more resources for financial aid, faculty and staff salaries, for clinics, for centers, and the university said no to all those things," he says.
Katherine Bartlett, dean of the law school, probably couldn't help but smile.
"He has an unusual combination of accessibility, clarity, likeability and understandability," she says. "He spends a lot of time with students. He has a ton of generosity."
Indeed, Chemerinsky says his first love has always been the classroom, and before the Civil Rights lawyers of the late 1960s and early 1970s inspired him to do otherwise, he thought of teaching at a high school. With weekly discussions over a brown bag lunch, he tries to get to know as many of his students as he can-and there are hundreds.
"To me teaching is all about encouraging people to think," he says. "There's no more exciting process than that. To me it's amazing that I get paid to stand in front of the classroom or sit in my office and do that with students."
With four children ranging in age from seven to 22, Chemerinsky has little time to relax outside the office. A huge sports fan, he still finds a few hours now and then to catch one of his favorite teams play-Chicago's Cubs and Bears; the Clippers, the Lakers and the Dodgers, all of Los Angeles; the University of Southern California football team; and the Duke men's basketball team.
For Chemerinsky, who openly states that he wants to see more Democrats appointed to the bench, the current state of legal affairs isn't promising. But the future may hold better things for him, and in any event, you can be sure he'll come out swinging.
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