EXCLUSIVE: US Judge Kyle Duncan Interview
Jurist silenced by elite Stanford Law mob explains why it matters for democracy
MAR 12, 2023
It was a revolt of the elites, a pogrom against free speech and civil discourse carried out by some of the nation’s most privileged. It was a scene from Dostoevsky’s political novel Demons played out in one of America’s most exclusive training schools for its legal ruling class. And it is a stark warning about the potentially totalitarian future of the US.
You will have heard by now about the shocking incident last week at Stanford Law School, one of the country’s top three, in which Kyle Duncan, an appellate judge on the federal Fifth Circuit, was shouted down and verbally abused by woke students who did not want to let him give a talk to students of the Federalist Society, which had invited him.
The law school’s diversity dean, Tirien Steinbach, turned up to read a long prepared statement in which she lectured the conservative judge for his wickedness, and for causing “pain” and “harm” to Stanford students through his jurisprudence and presence on campus. You can watch the entire debacle below — and you should, because you have to see it and hear it to grasp the grotesque and repulsive nature of what happened at one of America’s most elite law schools.
Since then, both the president of Stanford and the dean of the Law School have publicly apologized to Judge Duncan. But the significance of this event cannot and must not be brushed away — particularly given the prestige of Stanford Law School. This follows a similar incident a year ago at Yale Law School, the No. 1 law school in the country, in which ADF General Counsel Kristen Waggoner was shouted down by angry students.
Yale and Stanford are among the law schools that produce America’s top legal minds and practitioners — men and women who form a vital part of the institutional basis of America’s liberal democratic constitutional order. What happened at Yale was shocking enough, but what happened at Stanford is far worse, because it happened to a sitting federal judge. This has massive implications for the future of the United States.
Yesterday, Judge Duncan agreed to answer some questions about it all from me, in writing. The interview follows:
Rod Dreher: Watching the video of the encounter at Stanford was painful. Did you fear for your safety at any point?
Judge Kyle Duncan: It was a deeply unpleasant experience, but, no, I didn’t fear for my safety. We haven’t reached the point (yet?) where the kind of vicious invective thrown around thoughtlessly by coddled law students portends real violence. Still, had you been there, the loathing in the room for me and everything I supposedly stand for would have been almost tangible. And not only were my judicial opinions or my ideas attacked. The attack was intimately personal and, frankly, disgusting. If I talked to a dog the way those students talked to me, I’d feel ashamed. (Actually, there was a dog there, with paint on its fur in what is evidently one version of a transgender flag. But I don’t blame the dog).
One other thing about safety, and this is kind of incredible. As the protestors were noisily filing into the classroom, a somewhat older gentleman (ok, he was probably my age) approached me and said something like, “Your honor, I’m from the U.S. Marshals office in the Northern District of California. We heard there was something going on at your presentation, and we decided to come out and make sure you were safe.” I was speechless. I had thought about contacting the Marshals, but decided it would have been overreacting. And yet, by the grace of God, not one but two Marshals showed up on their own initiative (they were wearing street clothes and so it wasn’t obvious who they were). The Marshal told me, “If you feel unsafe at any time, just put your hand on top of your head, and we’ll get you out.” I love those guys.
So, no I never felt unsafe. But the presence of two U.S. Marshals helped. As we were walking out after the “talk,” one of them said, sadly shaking his head, “I’ve never seen anything like that.”
Did you ever get to deliver your remarks?
No. You might read comments somewhere that I was, at some point, given “permission” to deliver my remarks by the DEI Assistant Dean, Steinbach. Nonsense. For a good 20-30 minutes (I’m estimating), I was ruthlessly mocked and shouted down by a mob after every third word. And then Steinbach launched into her bizarre prepared speech where she simultaneously “welcomed” me to campus and told me how horrible and hurtful I was to the community. Then she said I should be free to deliver my remarks. Try delivering a lecture under those circumstances. Basically, they wanted me to make a hostage video. No thanks. The whole thing was a staged public shaming, and after I realized that I refused to play along.
You have called for the firing of the DEI dean and the disciplining of law students involved in the protest. Why?
Naturally, I realize that it’s up to Stanford what to do about the jeering mob of students and the DEI dean, Steinbach. But I said what I did because what went on in that classroom was an utter disgrace. Start with the students screeching vulgarities and interrupting me every other word. This is a law school, for crying out loud. It’s supposed to be training students to enter a profession where respectful disagreement, even about supremely important things, is the most basic tool of the trade. You can’t be a lawyer unless you understand that the role of a lawyer is to explain—zealously, yes, but also with care, precision, and respect for your opponent—why your client should prevail.
Ask yourself: how is anything that went on in that classroom remotely compatible with that mission? Answer: it is the opposite of what it means to be a lawyer. Unless those students undergo a radical change in their whole approach to argument and disagreement, they are unfit to be members of any bar.
But if that isn’t bad enough, now consider the DEI dean. Now, I don’t know this woman. I have nothing personal against her. I’m only reacting to how she played her role as an administrator of one of the most prestigious law schools in America, and during a very tense situation where students are spiraling out of control.
She did exactly the opposite of what a law school administrator was supposed to do. Instead of explaining to the students that they should respect an invited guest at the law school (yes, a federal judge, but really this applies to any guest), even one they might disagree with passionately, she launched into a bizarre (and already printed out) monologue where she accused me of causing “hurt” and “division” in the law school community by my mere presence on campus. So, this had the effect of validating the mob.
Then, at the same time, she pretended to “welcome” me to campus so that I could express my views. All of this was delivered, as anyone can see from the video, in the voice and idiom of a therapist. I found it profoundly creepy. It was the language of “compassion” and “feelings,” but it came across as deeply controlling and aggressive.
Many people are talking about the weird metaphor she used: “Was the juice worth the squeeze?” I had no idea what she was talking about, but at some point I realized that she meant, “Yes, you were invited to campus, and we ‘welcome’ you. But your presence here is causing such hurt and division. So, was what you were going to talk about really worth all this pain you’re causing by coming here?” In other words, it’s just a folksy way of giving these students a heckler’s veto. If they hate you enough, then surely it wasn’t worth your coming to campus. Apply that twisted idea to the civil rights movement, and see where you end up. It isn’t on the side of the people marching across the Selma bridge.
In other words, what the dean was preaching is the exact opposite of the law of free speech. We protect the speaker from the mob, not the mob from the speaker. And here was a dean of one of the best law schools in the world using the exact opposite of that basic principle to silence a sitting federal judge. I just read back through what I wrote, and I find it hard to believe what I’m describing. And yet it happened. You can watch the video.
I think many ordinary people will look upon this as “just college kids being college kids,” and dismiss it. As someone who has been following these events for years, I think that’s a mistake. Why does what happened to you at Stanford matter?
It’s a catastrophic mistake for at least two reasons. First, this is one of the best law schools in the world. The students are the cream of the crop. The future judges, senators, presidents, leaders of industry. And yet here is a mob of the best and brightest, shouting down a federal judge who’s been invited to campus, and thereby demonstrating that they don’t have the foggiest grasp of the basic concept of legal discourse: you have to meet reason with reason. Instead, their operating principle is: If I don’t like what you say or think, I will silence you. Power trumps reason.
Second, and this is critical, these students are evidently being formed to think and behave this way by the law school itself. I cannot fathom any other reason why they would feel free to spit vile insults in the face of an invited speaker they disagree with (again, who happens to be a federal judge). Sure, many of them arrived at law school predisposed to behave like this from their undergraduate formation. But the whole point of law school is to train bright-yet-unformed young minds to “think like a lawyer.”
You’ve seen The Paper Chase, of course. The brilliant professor Kingsfield humbles the first year law students with his withering Socratic interrogation. Now we’ve evidently turned that model upside down. The first year law students ridicule and silence Kingsfield for his cis-hetero-normativity, and then Kingsfield is publicly disciplined by the assistant DEI dean for harming the community’s sense of “belonging” by expecting them to recite a case.
Make no mistake: this kind of thing is endemic in legal education today, up and down the rankings. What is notable about this episode is that it has unmasked the dynamic in a dramatic way at one of the top law schools. As they say these days, the DEI dean “said the soft part out loud.” It’s impossible to miss.
Both the protest and the lecture that Dean Steinbach delivered to you are examples of what I call, in my book Live Not By Lies, “soft totalitarianism”. That is, they use the language of therapy (“pain,” “harm”) to justify silencing dissenting opinion and steamrolling over anybody who objects by declaring them to be haters. What does the Stanford Law debacle say about DEI and its compatibility with liberal democratic norms and principles?
Yes, I’ve described this whole sorry episode elsewhere as a “therapy session from hell.” It’s very important to unmask this for the underhanded manipulation that it is. To me, it seems like a particularly insidious form of the ad hominem attack: a person is labeled a “hater” or as “denying someone’s existence” or whatever, and so you can write that person off completely. This was demonstrated by the protestors again and again at Stanford. Whenever I would point out that it was despicable to treat me and their fellow students this way (that is, the students who invited me to campus), that the Federalist Society students would never imagine treating one of their invited speakers this way, and that therefore they should show some minimal respect, the response was inevitably: “But you deny our basic rights and even our right to ‘exist,’ and so we owe you no respect at all. We can say whatever we want to you, we don’t have to listen to a word you say, because you are a hater.” That message came through again and again. It is chilling.
As for whether this attitude is compatible with a liberal democracy, I think I have basically answered the question already. It’s the antithesis of liberalism. It is profoundly illiberal to reflexively silence those you disagree with by excluding them from the circle of respectable society and by equating them with the hostes generis humani—the enemies of the human race (I’m stealing that one from Justice Scalia). It’s the exact opposite of how we are supposed to reason and debate to figure out how to order our civic life together. It is a form of totalitarianism, as you yourself have pointed out over and over again. Yes, you fairly say this is “soft” totalitarianism, but it sure seems to be getting harder by the day.
And what does the Stanford event say about the future of liberal democracy — that is, when elite law students feel themselves entitled to treat a federal judge that way, and are encouraged to do so, actively or passively, by the law school administration?
The elites set the tone of our society, like it or not. The law students we graduate from Stanford, Harvard, Yale, Columbia, and the like are the ones who, inevitably, will be occupying the commanding heights of government, academia, big business, philanthropy, and so on. So what they think is acceptable behavior matters immensely. And if it doesn’t seem to matter as much right now, just wait five or ten years. Then they will have percolated up through the ranks and will be calling the shots. And then you will see this illiberal mindset more and more in action.
At some point in the “talk,” I just gave up and started trying to respond to the invective. And yes, I was angry. Sometimes anger is justified. Sometimes it is the appropriate response. I angrily told these jeering, howling students that what they were doing simply would not work in the courtroom, or in a law firm, or in a board room. They thought this was hilarious. They couldn’t care less.
What if they are right, though? What if, in ten or twenty years time, this kind of behavior is the norm in the courtroom, the law firm, the board room? And I don’t necessarily mean loud vulgarity and shouting people down. Instead, I mean a situation where power and ideology always trump reasoned debate. When we reach that place (and I’m assuming we haven’t already reached it in some way), then the rule of law will have turned into barbarism.