This is a belated reaction to the letters from several
conservative legal academics to the AALS dealing with diversity along political
lines. I’m going to do two posts in quick succession, and they ought to be read
together. This first post goes through a number of qualifications that, I
think, are required for one to think reasonably clearly about the issues. The
second makes some comments on the issue of political diversity in the field I
know best, public law scholarship.
The first and probably most important point is that we
always have to keep Sturgeon’s Law in mind: “Ninety percent of everything is
crud.” So, the question at issue is something like this: How much more likely
is it that a liberal who produces crud will get a job in the legal academy than
a conservative who produces crud? That framing is important because, first,
it’s the correct question, and second, because it helps avoid unproductive
discussions that begin with an assertion that “Conservative X did really good
work but couldn’t get a job, while liberal Y wrote something quite pedestrian
and did get a job,” and then continue by focusing on whether X’s work is
actually as good as is claimed, and Y’s as pedestrian. We ought to frame the
discussion on the assumption that we’re comparing two candidates who work is
cruddy, because – per Sturgeon’s Law – that quite likely to be true.
Second, I think the concern should be “not getting a job
(subject to the next qualification),” not “not getting a job at institution A.”
Of course specific candidates will care a great deal about where s/he gets a
job, but from the point of view of the legal academy as a whole, specific
placements are less important than diversity in the academy as a whole. (This
is not to defend overt political discrimination – about which more in a bit – at
individual institutions, but it is to suggest that overt discrimination is less
important systemically than actual outcomes. And, after all, the general
interest in affirmative action/diversity is driven by concerns about disparate
effect, not disparate intent.) In addition, in (I’m reasonably sure) every
individual case there will be a “local” story about why a particular candidate
didn’t get a job as a specific institution. These local stories typically take
the form of “We had a pressing need for a person in field N that year, and
unfortunately the person you’re talking about didn’t satisfy that need.” [And
if the institution hired someone in the candidate’s field, the local story may
well be, “Yes, but the person we hired did something else we found attractive,
whereas the person you’re talking about, while fine in his/her field, didn’t
offer that additional feature.]” We need to take an approach that washes out
all these local stories.
Third, at least for myself, the question should be about
getting a job within a broad band of roughly equivalent institutions. I’m not a
big fan of the T-14, 15-50, etc. bands when used for a large number of purposes
(my experience is that individuals at institutions in every band do really interesting
work, for example, so that institutional affiliation isn’t, alone, a good proxy
for quality), but in the present context I don’t think it’s worth getting
exercised about the fact that a conservative candidate got a job at an
institution closer to the “50” end of the band while the “comparator” liberal
candidate got a job at an institution ranked fifteen or twenty places higher.
Again, this may be a matter of real concern to the candidate (particularly if
one thinks, as may be true, that “writing out” is more difficult even within
bands), but, again for myself, I don’t think it’s a matter of concern for the
legal academy as a whole.
Fourth, my focus in these comments is on entry-level hiring,
not lateral hiring. The latter is, I think, even more subject to “local”
stories than entry-level hiring (with “quality of teaching” serving as the
generic substitute for “we didn’t need someone in that field that year”). And,
I confess I can’t avoid a certain amount of something akin to, but not quite
the same as Schadenfreude, which I capture in the following: Going by the AALS
Directory, my colleagues Adrian Vermeule, Jack Goldsmith, and John Manning were
hired by Harvard 10 years into their careers in the legal academy; I was hired
by Harvard 33 years into my career. It’s going to take me a long time to get
exercised about political discrimination against conservatives in lateral
hiring.
Fifth, with respect to entry-level hiring: I haven’t been on
an entry-level hiring committee for a long time (I served on Harvard’s
entry-level committee for one year about a decade ago, and not on Georgetown’s
for quite a long time before I left). And, of course, a lot of the action takes
place at the committee level. Political discrimination is more likely to occur,
I think, at the screening stage than at the faculty-vote stage, but I wouldn’t
have observed what happens at the screening stage. OTOH, I do read pretty
widely, and I read lots of articles (in public law) that are either first
articles or job talk articles, so I think I have a decent sense of what
candidates are presenting, at least in their scholarship, to the hiring
committees.
Finally, just a note on one of the letters’ specific requests,
for access to the Faculty Appointments Register. Putting aside concerns about
confidentiality, which I’m not sure could be addressed by anonymizing that
wouldn’t quite substantially undermine the FAR’s utility for research into
political discrimination, I’m pretty confident that what you could get out of
the FAR for these purposes would be quite limited. Memberships might show up,
though the “word on the street” that people shouldn’t place Federalist Society
membership on their FAR forms suggests that memberships aren’t going to be a
good proxy for politics. Who a candidate clerked for (if s/he did) is also a
quite imperfect proxy, although I gather it’s getting better as judges
themselves screen more these days for politics. And, I suppose there might be
sophisticated word searches on article titles that might get you somewhere.
But, I suspect that the quality of research into political discrimination based
on the FAR would be quite low – and lower than its results would be touted to
be.
So, with that in the background, on to “the merits”: Is the
typical conservative crud (in public law) systematically worse than the typical
liberal crud?