By Jane Mayer
The New Yorker
Last week, Texas Senator Ted Cruz’s prosecutorial style of questioning Chuck Hagel, President Obama’s nominee for Defense secretary, came so close to innuendo that it raised eyebrows in Congress, even among his Republican colleagues.
Senator Lindsey Graham, Republican of South Carolina, called Cruz’s inquiry into Hagel’s past associations “out of bounds, quite frankly.”
The New York Times reported that Senator John McCain, Republican of Arizona, rebuked Cruz for insinuating, without evidence, that Hagel may have collected speaking fees from North Korea.
Some Democrats went so far as to liken Cruz, who is a newcomer to the Senate, to a darkly divisive predecessor, Senator Joseph R. McCarthy, whose anti-Communist crusades devolved into infamous witch hunts.
Senator Barbara Boxer, a California Democrat, stopped short of invoking McCarthy’s name, but there was no mistaking her allusion when she talked about being reminded of “a different time and place, when you said, ‘I have here in my pocket a speech you made on such-and-such a date,’ and of course there was nothing in the pocket.”
Boxer’s analogy may have been more apt than she realized.
Two-and-a-half years ago, Cruz gave a stem-winder of a speech at a Fourth of July weekend political rally in Austin, in which he accused the Harvard Law School of harboring a dozen Communists on its faculty when he studied there. Cruz attended Harvard Law School from 1992 until 1995. His spokeswoman didn’t respond to a request to discuss the speech.
Cruz made the accusation while speaking to a rapt ballroom audience during a luncheon at a conference called “Defending the American Dream,” sponsored by Americans for Prosperity, a non-profit political organization founded and funded in part by the billionaire industrialist brothers Charles and David Koch.
Cruz greeted the audience jovially, but soon launched an impassioned attack on President Obama, whom he described as “the most radical” president “ever to occupy the Oval Office.” (I was covering the conference and kept the notes.)
He then went on to assert that Obama, who attended Harvard Law School four years ahead of Cruz, “would have made a perfect president of Harvard Law School.”
The reason, said Cruz, was, “There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were 12 who would say they were Marxists who believed in the Communists overthrowing the United States government.”
“We are puzzled by the senator’s assertions, as we are unaware of any basis for them,” Robb London, a spokesman for Harvard Law School, told me.
London noted that Cruz had contributed “warm reminiscences“ of the school by video for a reunion of Latino alumni.
“We applaud the fact that he has pursued public service, as so many of our graduates have done. We are also proud of our longstanding tradition of freedom of speech and the robust range of views and debates on our campus,” London said.
Harvard Law School Professor Charles Fried, a Republican who served as President 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 said.
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 (12 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 1930s and ‘40s) were in quite bad odor among radical intellectuals.” He pointed out that by the 1990s, 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.”
It may be that Cruz was referring to a group of left-leaning law professors who supported what they called Critical Legal Studies, a method of critiquing the political impact of the American legal system.
Professor Duncan Kennedy, for instance, a leader of the faction, who declined to comment on Cruz’s accusation, counts himself as influenced by the writings of Karl Marx. But he regards himself as a social democrat, not a Communist, and has never advocated the overthrow of the U.S. government by Communists. Rather, he advocated widening admissions at the law school to under-served populations, hiring more minorities and women on the faculty, and paying all law professors equally.
Sounding like a disappointed professor, Fried said that Cruz’s willingness to label the faculty Communist “lacks nuance.” He said he remembered Cruz well, as “very bright, very hard-working and very conservative, in a well-mannered, agreeable way.”
So he said, “This surprises me. It suggests he’s changed.”
So too, perhaps, has the U.S. Senate.