Fox News anchor Megyn Kelly defended Sen. Ted Cruz's (R-TX) baseless declaration that 12 Communists served on the Harvard Law School faculty when he attended it in the early 1990s.
During a June 14 America Live segment about progressives criticizing Cruz, contributor Alan Colmes pointed out that Cruz had said he was "honored" to have been compared to notorious red-baiting Sen. Joseph McCarthy after "he said that we have a list of Communists at Harvard." Kelly replied that Cruz had said he "believed that there were more Communists at Harvard - because he went to Harvard undergrad and Harvard Law School - thanthere were Republicans." After Colmes interjected that Cruz had said he had "a list of them, just like McCarthy," Kelly replied, "But do you have reason to believe that's not true?"
The red-baiting Kelly defended has been debunked by Charles Fried, who has been teaching at Harvard Law since 1961 and served as solicitor general during the Reagan administration.
In February, the New Yorker reported that during a 2010 speech, Cruz said President Obama "would have made a perfect president of Harvard Law School," explaining (emphasis added):
"There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government."
New Yorker reported that Fried criticized Cruz's comments, saying that his "willingness to label the faculty Communist 'lacks nuance.'" Fried said he doubted that any members of the faculty were Communists at the time Cruz attended the school, and that several members were Republicans:
Harvard Law School Professor Charles Fried, a Republican who served as Ronald Reagan's Solicitor General from 1985 to 1989, and who subsequently taught Cruz at the law school, suggests that his former student has his facts wrong. "I can right offhand count four "out" Republicans (including myself) and I don't know how many closeted Republicans when Ted, who was my student and the editor on the Harvard Law Review who helped me with my Supreme Court foreword, was a student here."
Fried went on to say that unlike Cruz, or McCarthy, who infamously kept tallies of alleged subversives, he had never tried to count Communists. "I have not taken a poll, but I would be surprised if there were any members of the faculty who 'believed in the Communists overthrowing the U.S. government,'" he said. Under the Smith Act, it is a crime to actively engage in any organization pursuing the overthrow of the U.S. government.
Fried acknowledged that "there were a certain number (twelve seems to me too high) who were quite radical, but I doubt if any had allegiance or sympathy with anything called 'the Communists,' who at that time (unlike the thirties and forties) were in quite bad odor among radical intellectuals." He pointed out that by the nineteen-nineties, Communist states were widely regarded as tyrannical. From Fried's perspective, the radicals on the faculty were "a pain in the neck." But he says that Cruz's assertion that they were Communists "misunderstands what they were about."
Responding to the New Yorker piece, a Cruz spokesperson said that the senator's "substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of 'critical legal studies' -- a school of thought explicitly derived from Marxism - and they far outnumbered Republicans."
But as critics noted, adherents to critical legal studies, while obviously liberal, do not identify as Communists or seek the overthrow of the government. As ThinkProgress' Zach Beauchamp reported (emphasis in the original):
ThinkProgress reached out to Georgetown University law professor Louis Michael Seidman, a leading "crit" (the term CLS exponents use for themselves). Here's what Seidman told us:I don't have anything that's not obvious to say about Cruz's disgusting comments. A lot of early crit work was designed to refute Marxist theories of law, although some crits were also influenced by Marx. I know of no crit who thought of himself as a communist or who supported the regimes in the Soviet Union or China.
A 1992 article by crit Richard Michael Fischl backs up Seidman. As if anticipating Cruz, he wrote "Those of us associated with cls think it grossly unjust when our critics make an analytically identical move and argue that Stalinist totalitarianism is the 'best worked-out, most consummated' version of our position -- in the face of the fact that a common intellectual thread that ties together virtually all cls work is its rejection of the authoritarianism and vulgar determinism suggested by the Stalinist label."
So it's clear enough: crits aren't revolutionary Marxists. But Seidman's suggestion that CLS "was designed to refute Marxist theories" implies that even Cruz' spokesperson's reformulation was inaccurate: far from being "explicitly derived" from Marxism, CLS was explicitly seen as a critique of Marxist thought. So not only did Cruz get it wrong, but in a certain sense he got it backwards.