The nomination to the U.S. Supreme Court of an identifiably conservative figure tends to set off a flurry of noisy opposition from the ranks of legal academia, and that of Judge Samuel Alito in 2005 was no exception. Rallies were set up, petitions circulated, and more than 500 law professors signed a letter urging the nominee’s defeat. A particular hotbed of opposition emerged at Yale, where faculty organized something they called the Alito Project to furnish the nomination’s opponents with ammunition. There was a bit of a human-interest angle on this last, because Alito, a 15-year veteran of the Third Circuit who had garnered the American Bar Association’s highest recommendation, was himself a Yale Law graduate. For that matter, an earlier Court nominee who had also drawn frenetic opposition at Yale Law School, Clarence Thomas, had been a Yale grad, too.
On many campuses, a running campaign against the Supreme Court nominations of the institution’s own alumni would have been considered an unthinkable lapse of school spirit. Not in New Haven, though. You might even say that by leading the charge against ideological turncoats and traitors, the professors were embodying Yale’s own special kind of school spirit. The U.S. Senate, in any event, proceeded to ignore the profs’ efforts, confirming Alito by a 58–42 margin, as it had earlier confirmed Thomas 52–48.
One moment in the affair did occasion a bit of eyebrow-raising, however. It came when renowned liberal professor Owen Fiss explained to the New York Times the link between the two nomination battles: “The one lesson for the law school [of the earlier fight] was that we didn’t work hard enough to oppose [Thomas].”
“We”? A lesson “for the law school”? After some confusion, the Yale administration altered its website to distance itself a bit from the Alito Project and to clarify that Professor Fiss had not actually been speaking for the faculty as a whole; on the question of whether its alumnus should be confirmed to the Court, the school instead preserved a studied neutrality.
Not to say that Yale Law did not think of itself as an engaged sort of place. In a welcoming speech to incoming students a few months earlier, Dean Harold Koh (like Fiss, a famously liberal figure) recounted at length the school’s courtroom fight against having to admit recruiters from the U.S. military as a condition of taking federal funds, a battle that later emerged as an issue in Elena Kagan’s Supreme Court nomination. The long controversy illustrated, Koh said, how at Yale “the human rights tradition runs deep. . . . There is only one Yale Law School and it is us. We are not just a law school of professional excellence; we are an intellectual community of high moral purpose.”
After that rhetorical wind-up came the not-un-self-congratulatory pitch: “Ladies and Gentlemen of the Yale Law School of 2008, Citizens of the republic of conscience, Welcome to the Yale Law School!”
Citizens of the republic of conscience. If the modern elite law school really counts as a republic of conscience, it is very nearly a one-party republic: Democrats at last count outnumbered Republicans 28 to 1 on the Stanford faculty, 23 to 1 at Columbia, while Harvard is said to have gone 30 years without hiring a single Republican (even as it formed a panel to fret about the need for more faculty diversity of other kinds). In 2008, law professors donated somewhere between 10 to 20 times as much to Democratic as to GOP White House contenders.
Reporting on a study with similar results—an 81 percent/15 percent Dem/Rep split among top law-school faculty—Adam Liptak of the New York Times noted that only the presence on the list of the University of Virginia, which had a relatively even balance, kept the figures from being even more lopsided, as they were at Harvard (91 percent D), Yale (92 percent), and Stanford (94 percent).
From time to time, this ideological imbalance occasions wider discussion, with some commentators within the academy perturbed about it, others not. Professor Peter Schuck of Yale Law, whose self-described “militant moderate” politics place him well on the right by the standards of fellow faculty members even if not by those of the nation generally, has written that while the schools invariably claim to “cherish robust debate, iconoclasm and arguing issues from all sides,” the truth is that “they care much more about diversifying their skin colors, genders and surnames than about diversifying their points of view.” Sloganeering about the need for a faculty that “looks like America” is at best inconsistently applied; a study by Northwestern’s James Lindgren found that the most demographically underrepresented group on law faculties, relative to the pool of available legal talent from which faculty might be drawn, are white Republican women.
Of course, others have proposed that if conservatives do not fit well into modern academia, it’s because—well, because they’re not all that bright. “We try to hire the best, smartest, people available,” Duke philosophy chair Robert Brandon said of similar findings at his institution. Brandon went on to cite John Stuart Mill (not quite accurately) for the proposition that “stupid people are generally conservative.” Some voices in the legal academy take a Brandon-esque line. “Not all ideologies have merit,” offers the left-leaning Chicago law professor Brian Leiter as a reason for the shortage of Republicans among his colleagues. Leiter has dismissed calls for wider ideological diversity as pleas for “affirmative action for conservatives who can’t make it on the merits of their work.”
The imbalance is especially strong in constitutional law. One might tour a dozen elite institutions without running into a single constitutional specialist well disposed toward, say, Rehnquist or Roberts Court jurisprudence. Opinion is scarcely more divided on such areas as employment or consumer law: pick 50 law-review articles at random, and you are unlikely to find one that argues for reducing as opposed to expanding the scope of liability. Environmentalism? Feminism? Disabled rights? Gay rights? Immigration? Topic after topic rouses lively controversy in the rest of the country but not in the legal academy.
Some fields are more open to a spectrum of views than others. Leiter, the Chicago law professor, has compiled lists of the most prominent law professors in various specialties, as measured (however imperfectly) by citation counts. They confirm the left’s near-total dominance in constitutional law, where outspoken liberals occupy all the half-dozen top spots, and no well-known conservative appears until around position No. 18. International law, labor/employment, legal ethics/legal profession, environmental law, and procedure are others with strong liberal concentrations. A few areas—intellectual property law, tax, and inheritance—appear to lack much of a political charge one way or the other. In only two areas—business law and law and economics—does a noticeable concentration of conservative or free-market-oriented scholars appear, and in both cases it is as part of a decided mix of left and right voices.
Unsurprisingly, the range of permissible opinion is at its narrowest where identity politics is at stake, a set of topics often associated in private faculty conversation with terms like “minefield” and “career-ending.” Many schools have launched law-and-race centers and projects, which without exception situate themselves very much to the left of center. Thus it is with the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at Berkeley, the C.H. Houston Institute for Race and Justice directed by Barack Obama’s mentor Charles Ogletree Jr. at Harvard, Florida’s Center for the Study of Race Relations (recent lecture topic: “Reactionary Colorblindness”), UCLA’s Critical Race Studies Program, the Structural Racism Initiative at Ohio State, or the similar centers at Chapel Hill, Northeastern, and so on.
Many topics with no obvious identity-politics dimension, however, command almost as much consensus. Thus pretty much every labor-law specialist with a national profile favors expanding the distinctive legal powers of labor unions, all but a few land-use experts favor giving government more powers to regulate private landowners, and so forth. Where there is an exception, it is often named “Richard Epstein,” the libertarian-leaning polymath called on to serve as a voice of near-lone dissent in a half-dozen or more far-flung areas.
To be sure, there is these days a haven and refuge for dissident students and faculty in the form of the declaredly conservative/libertarian Federalist Society. Successful as they are, however, the Federalists are by design an outsider’s debating group, not a part of the institutional law school, and utterly unrepresentative of faculty opinion at most schools. Even more recently, a couple of schools have experimented with opening up more of an institutional home for right-of-center scholars, notably at the George Mason University School of Law, a state school in the Virginia suburbs of Washington, D.C.
But such programs are outnumbered 30-, 50-, or 100-to-1 by projects and programs of an opposite view, which often make no effort to conceal their ideological mission. Yale’s Legislative Advocacy Clinic attempts to move the state of Connecticut toward “a more progressive agenda in taxing.” Georgetown’s course offerings include “Organizing for Social Change: Anti-Subordination Theory and Practice,” incorporating “the strategies of professional organizers” in a class “designed for the lawyer as change agent.” George Washington’s program in animal-rights law “attempts to change attitudes about the relationship between human and non-human animals.” Choices for students at Pace include the Social Justice Center (“Supported by a grant from the Ford Foundation, the Center is engaged with various communities in exposing police abuse of minorities and facilitating civilian oversight of the police”) and the Energy Project, long engaged in the campaign to close a nuclear plant on which Westchester County relies heavily for its electric supply. Santa Clara’s Center for Social Justice and Public Service “builds a community for students, faculty, lawyers, and others who share a commitment to marginalized, subordinated, or underrepresented clients and causes.”
The farther shores of leftism are amply populated as well. Among the renowned career successes of the modern law school is that of the former Weather Underground terrorist Bernardine Dohrn at Chicago’s Northwestern. Given her past as an FBI Most Wanted List long-timer, Dohrn couldn’t practice law and had never held a teaching position, but that didn’t stop Northwestern from hiring her to run what developed into a high-profile national clinical project in juvenile justice. Dohrn’s presence on the faculty provoked some dissension—“I thought that what we were doing was participating in the laundering of evil,” Professor Daniel Polsby, then on the faculty, told the Chicago Tribune—but the school’s dean vigorously defended her.
Then there’s the remarkably friendly reception accorded to Lynne Stewart, a New York lawyer from the farthest fringes of left-radicalism who was convicted and disbarred in a high-profile case for unlawfully helping one of her clients, the Islamic terrorist Abdel Rahman, pass messages out of the country to his followers. (Despite the ideological differences between the two, Stewart apparently admired the “Blind Sheik” Rahman as someone at war with the capitalist U.S. government.) Free while her appeal was pending, Stewart embarked on a tour of law schools and other campuses organized by admiring supporters. Others who’ve made the rounds on the radical law-school speaking circuit include Kathleen Cleaver, a former high official of the Black Panther Party and now a senior lecturer in law at Emory; the former Ten Most Wanted fugitive and terror acquittee Angela Davis, given a standing ovation at Harvard as part of the inaugural program of Professor Ogletree’s new institute on race and law; and Laura Whitehorn, a member of a Weather Underground splinter that bombed the U.S. Capitol and seven other buildings.
The key to success on this particular speaking circuit is to come across as entirely unrepentant and even more radical than the audience dared hope. Stewart did not disappoint, explaining in one interview that yes, she did look favorably on violence when it was “directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support.” Her words on another occasion confirm that Stewart is no namby-pamby practitioner of let’s-be-nice civil libertarianism: “I don’t have any problem with Mao or Stalin or the Vietnamese leaders or certainly Fidel locking up people they see as dangerous. Because so often, dissidence has been used by the greater powers to undermine a people’s revolution.”
When Stewart’s campus visits took place under the sponsorship of like-minded student organizations, as was mostly the case, they hardly registered as more than the screech of ideological background noise one gets used to hearing on campus. But people did notice when Stanford Law School, which vies with Yale as the most prestigious and competitive of them all, invited Stewart to serve as a “Visiting Public Interest Mentor.” Even at Stanford, this was enough to touch off a furor, and Dean Kathleen Sullivan—much to the outrage of some in the school’s “public interest” community—stepped in personally to see that the invitation was withdrawn.
Lesson learned? Maybe at Stanford itself, but not at New York’s Hofstra Law School, which proceeded to invite Stewart to lecture on legal ethics as part of a major annual conference, on a program studded with vocal supporters of her case and bereft of vocal critics. This time the outcry was bigger and broke into the national press, at which point the school hurriedly revamped the program to ensure that critics of Stewart would have a conspicuous role as well. It also was obliged to drop continuing legal education (CLE) credit for Stewart’s panel after it was pointed out that a New York law forbids the awarding of CLE credit for courses taught by convicted felons. Hofstra’s administration seemed to be genuinely puzzled and surprised at the public outcry provoked by its invitation to Stewart; it really didn’t seem to have anyone on hand who was enough in touch with national opinion to warn them.
Other academic disciplines such as sociology and political science show ideological imbalances similar to those of academic law. There is reason to believe that the barrier or deterrent to conservative entry is not so much in acquiring the requisite credentials (such as advanced degrees) but in converting them into a durable career in academia. At Minding the Campus, the economist Daniel Klein describes a study of scholarly association memberships:
We found that Republican-voting members of the scholarly associations were significantly more likely to have landed outside of academia. For example, in Anthropology/Sociology, 43% of the Republican scholars were working outside academia, compared with only 24% of Democrat scholars. In History, it was 47% versus 27%. In all six disciplines overall, it was 41% versus 25%. The individuals we are talking about here are members of the American Anthropological Association, the American Historical Association, and so on. Most had PhDs. So we find that Republican-voting members of such associations are consistently more likely to be working outside of academia—in government, private sector, independent research, or other.
In law, much more so than in anthropology or history, jobs outside academia (in private law firms, for example) offer many extremely attractive options for persons with the relevant qualifications. And in fact, the ranks of high-end practicing lawyers—many with stellar academic training in law—are far more balanced politically than those of legal academia. If promising young conservatives are disproportionately attracted to private practice, bias or discouragement alone might not fully explain what Richard Posner has called the “self-selection of leftward-leaning lawyers into academic law.”
When conservatives do make the attempt, however, the clubbiness will be an obstacle. And the temptation will be to keep their heads down, suppress views known to be unpopular, and either stake out some topical specialty in which they happen to share in the liberal consensus, or one like securities or estate law that is mostly off the political radar screen.
To succeed in academic law, most younger scholars need to publish widely and network at conferences with like-minded colleagues in a position to advance each other’s careers. Candidates with acceptable politics have an advantage on both fronts. Where to publish? Conservatives and libertarians looking for a like-minded outlet may choose between the Federalist Society’s Harvard Journal of Law and Public Policy, the NYU Journal of Law and Liberty, the Texas Review of Law and Politics, and perhaps a few others. On the left, to start with Harvard alone, the array includes Unbound: Harvard Journal of the Legal Left, the Journal of Law & Gender, the Civil Rights–Civil Liberties Law Review, the race-and-law Black Letter Law Journal, the Environmental Law Review, the Human Rights Journal, the Latino Law Review, and several others of similar nature, all aside from the Harvard Law Review itself.
And that’s just one school. The broader menu of publishing options affords many dozens of choices in the race and gender categories alone, from the Iowa Journal of Gender, Race and Justice (“Feminist inquiry and critical race analysis are the touchstones of our endeavor. . . . We include all struggles against oppression within this conception”) to the Georgetown Journal of Law & Modern Critical Race Perspectives (founded by students “inspired by their experiences with critical race theorists here at Georgetown and who saw the establishment of a race and identity law journal as a meaningful kind of activism”). Given this superabundance, a young scholar working in the correct vein will have very good chances of placing his or her output, all the more so since a well-executed article on gender, international human rights, or public-interest law is something the “regular” law reviews may be more than happy to publish.
When hiring time arrives, a key threshold question is what kind of hires the target school wishes to make. KC Johnson of Brooklyn College has observed that a school can utterly transform the political tenor of its history department simply by deciding to stop acquiring new scholars in military and diplomatic history, rightly or wrongly perceived as redoubts of conservatism, in favor of identity-history specialties. Similar effects are seen in academic law now that every forward-minded school needs a specialist in gender law and race-and-law. And if you want a reputation as diversity-friendly, why stop at one? Once you add in a few politically engaged exponents of education, health, consumer, police-misconduct, environmental, and housing law, the inevitable international-human-rights specialist, and especially clinicians, a critical mass quite likely begins to form that can set the tone on many issues, even aside from their co-thinkers among those who teach old-line legal subjects.
UCLA’s Stephen Bainbridge, one of the higher-profile conservatives in legal academia, says conscious political opposition to right-leaning candidates is a less important factor in screening them out than shared assumptions, connections, and comfort levels. “In other disciplines, there are more objective standards for quality of work,” one dean told the Times’s Liptak. “Law schools are sort of organized in a club structure, where current members of the club pick future members of the club.” “I think blacks want more blacks, women want more women, and leftists want more leftists,” adds Harvard’s Alan Dershowitz. “Everybody thinks diversification comes by getting more of themselves.”
At least three kinds of pressure from the outside push the law school leftward. They are accreditation, fear of litigation, and—surprisingly or otherwise—donor influence.
The ongoing process of law-school accreditation is reliably rumored to have been a leading torment for law-school deans inclined to vary from prevailing left-friendly management formulas. Most schools of any stature find it unthinkable to do without a clean bill of health from the two major accreditation agencies for legal academia, the American Bar Association and the Association of American Law Schools. To pass muster, all law schools must submit to periodic site inspections and undertake what the ABA calls “self-study” (sometimes nicknamed “self-criticism”). For starters, self-study requires the school to confront the adequacy of its diversity efforts; tougher language adopted in 2006 provides that schools “shall demonstrate by concrete action” their commitment to this goal. Thus a sample question from the 2007 ABA site-evaluation questionnaire:
Describe and itemize how the law school has demonstrated by concrete action during the past two years a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity.
In practice, even schools that have pursued diversity with much vigor often feel pressure from site inspectors to do more: it couldn’t hurt, in satisfying them, to add yet another Latino law journal or feminist conference series to the mix. A professor at one well-known school in the Northeast, who has taken part in two reaccreditation self-studies, explains:
Like locusts, they come every seven years. The folks who accredit law schools are left-liberal academics in the service of the ABA, with an occasional member of the practicing bar thrown in. They not only threaten the accreditation status of schools that do not have clinics, but actually [demand] that clinical professors be integrated into the life of the law school on general terms of equality with the research faculty, leading to a left-tipping bloc in most faculty votes. And don’t even get me started about “mission statements,” each of which must be more self-abasing in terms of service to the underserved than the one before it.
Resisting the zeitgeist can also place a school at a disadvantage in lawsuits. Denials of tenure to feminist scholars have repeatedly led to high-profile discrimination claims, and more than one case has contended that an unwelcoming attitude toward feminist or minority-focused scholarship is part of the pattern or practice for which a school should be held accountable. One such lawsuit was filed against Oklahoma City University School of Law following a memo by four female professors complaining of harassment, unequal pay, “insensitivity,” and “discriminatory attitudes and behavior that are harming and have harmed our professional careers and quality of life.” Among the bill of particulars, according to one news report, was an all-male panel for a Constitution Day program in 2007: “The female professors also complained the OCU law school has no regular civil rights course, criminal law classes don’t cover rape, and the landmark abortion case Roe v. Wade is only covered sporadically in constitutional law.” Note that some of these complaints go to the heart of professors’ discretion on how to teach their subjects, as with the constitutional-law professor who chose to cover Roe v. Wade “only . . . sporadically” rather than treat it as central and iconic.
One reason some academic careers outpace others is that some candidates are highly “fundable”—that is, have the backing of key grant makers outside the institution. Consider, for example, Bernardine Dohrn and how she got ensconced at Northwestern despite her lack of ordinarily expected teaching and practice experience. One factor that couldn’t have hurt: both Dohrn’s father-in-law and her former employer sat on the Northwestern board. But another was that her program reliably raked in major grants from the high-profile MacArthur Foundation and other grant makers. Observers say the grants were widely read as a vote of confidence in Dohrn personally and might not have been assured had the program been assigned to someone else.
But not every proposal can get past the university committee. “They won’t take money just from anyone for anything,” says Daniel Polsby, dean at George Mason and previously a Dohrn colleague at Northwestern. “There is a very ideological screen.” Columbia, Duke, UCLA, and Stanford were among schools that accepted $7 million in grants from a foundation established by the TV personality Bob Barker to endow programs in animal-rights law; Harvard established the Bob Barker Endowment Fund for the Study of Animal Rights, while Georgetown launched a clinic that it said would give students credit for working with Humane Society litigators. Would the resulting projects pursue research findings and court action that might displease the followers of Barker, known as a passionate advocate of animal rights who intended for his foundation to advance that cause? It’s hard to say for sure, but one can speculate whether the schools would have been as likely to accept millions to establish animal-law programs named after Fred the Furrier.
Some funders are pushier than others. Perhaps the most famously pushy of all is the Ford Foundation, which pioneered high-stakes law-school philanthropy in the 1950s and has remained a key donor since then. Among its constants has been the goal (to quote an early Ford-sponsored panel) of “developing the social conscience of law students and professors.” Ford has also aggressively sought to introduce new topics to the law-school curriculum, beginning with a largely failed 60s effort to establish poverty law as a new subject, and later through generous patronage of women’s studies, race studies, and other identity-based studies programs, which it also supports in other parts of the university. More recently, it has turned major attention to promoting international human-rights law.
Even by the standards of legal academia, Ford’s left-tilting style of philanthropy is something special. For one thing, it is frank in emphasizing movement-building in contrast to a spirit of inquiry. Whatever their political leanings, most faculties pride themselves on the kind of regard for the life of the mind that values research for its own sake and for its potential to reveal unexpected things about the world that might call on us to revise our current thinking. Ford, on the other hand—as reflected in its policy document on legal philanthropy, Many Roads to Justice—hews to an official view of research as purely instrumental, providing ammunition for causes and crusades already settled on as desirable.
“Research can be a powerful tool for social change,” it concedes. The resultant findings can “support policy and law reform, provide the factual basis for litigation,” and, as it explains at another point, help grantees “galvanize public support for policy reform.” But it goes on to caution in all sternness that research “does not constitute a stand-alone strategy.” The mere elucidation of a social problem for purposes of understanding it more deeply, in other words, is not a good enough reason to open the foundation’s ample checkbook. Which makes a sort of sense, on the assumption that they’re not expecting the findings of new research to change their own minds about anything.
Frequently, the funding of a law-school project serves as a key strategic step in planning a longer-term campaign toward some desired breakthrough in the real-world courtroom. Thus generous foundation support enabled the founding of the Harvard Civil Rights Project in 1996 with the aim of laying the groundwork for the (successful) defense of racial preferences in university admissions before an ambivalent Supreme Court. Dohrn’s juvenile-justice project at Northwestern “played an integral role,” in its own words, in advancing the long campaign of legal and public advocacy that culminated in 2005’s 5–4 Supreme Court decision in Roper v. Simmons, declaring the death penalty unconstitutional as applied to crimes committed before age 18.
In 1995 there was founded the Brennan Center for Justice at New York University School of Law, which was to serve as something of an overall academic headquarters for the Legal Left. Brennan, which bills itself “part think tank, part public interest law firm, part advocacy group,” has roared to an $8 million budget in its short existence. (Supporters include George Soros, with more than $3 million in start-up grants, along with Carnegie, Ford, Pew, Joyce, Rockefeller, and so on.) To name just one of its many activities, its “Living Constitution Project” describes itself as “a comprehensive public education initiative” aimed at countering the “pinched and narrow view of the role of law, the Constitution, and government” purportedly held by conservative thinkers.
So, yes, as a counterweight to all of this, there is . . . the Federalist Society. It has been in existence twice as long as Brennan. And its budget is at a comparable level ($9 million nationally). But if the Federalists are expecting to be welcomed into a top-10 law school like NYU as part of its official university structure, the way the Brennan Center has—well, they are likely to wait a long time.