Balkinization  

Monday, April 15, 2013

Reflections (II) on the Federalist Society conference on intellectual diversity

Mark Tushnet


Here are three only loosely related additional observations about the Federalist Society conference on intellectual diversity. The first and second are a bit snarky, and make specific reference to my colleague and co-panelist Jack Goldsmith, so I want to make it clear at the outset that my remarks are NOT directed at him personally; I’m using “him” as an allusion to a more general phenomenon.

1. Nick Rosenkranz’s post on the conference refers to Jack’s “powerful comments on what it is like to be a right-leaning professor at Harvard Law School.” To which my response is (again invoking the market): No one’s forcing him to stay at Harvard. If there’s another law school that offers him a package of attributes that’s more attractive (that is, if the net effect of his isolation at Harvard is negative), go in peace. Indeed, as I understand it another participant at the conference – Michael Stokes Paulsen – did exactly that, and for pretty much the “right” reasons. (So, a couple of decades ago, did Paul Bator.)

2. There’s a brief exchange between me and Jack that I want to unpack. I asked Jack how long he’d been in the legal academy before he arrived at Harvard. His answer: Roughly nine years. I then pointed to the equivalent figure for me – thirty-three years – as a way of suggesting that there have been other forms of political discrimination in the legal academy. (No, I’m not resentful, really. Really.) Jack responds, clearly joking, that his record was stronger than mine – and later (I think) someone in the audience says something about a difference in our fields of specialization. Here I have two responses: (a) Pick an N between 9 and 33, and find me a conservative not teaching at a T14 law school whose record at N years was as good as mine, and then I’ll start sympathizing with claims about political discrimination against conservatives. (b) There are always “local” explanations for failures to hire – typically, of the form, "We don’t need someone in that field right now,” where the definition of the field is subject to quite a bit of manipulation – which provide an excuse for discrimination.

3. From my perspective, what’s striking about the political spectrum in law schools is that it ranges from the center-left, with a handful of outliers to the left, to the rather conservative right. It’s quite difficult to find a legal scholar at a T14 school who is an unabashed European social democrat or who thinks that having a thick social safety net is a matter of social obligation and perhaps even constitutional duty, much more difficult than it is to find an Ayn-Rand style libertarian. (Without I hope disclosing too much, we had a presentation at a faculty workshop where the presenter used “varieties of capitalism” as an explanatory variable; it was if – to appropriate a phrase from Robert Paul Wolff – someone at a traditional Catholic school had said, “I get the Father and the Son, but you have to give me a pass on the Holy Ghost,” offering a way of thinking that was socially wildly inappropriate.) But, as Jim Lindgren’s comments indicate, that’s not how things look to Federalist Society sorts, where what to me is the center-left is incredibly radical leftism.

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