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Saturday, May 23, 2009

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.


Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

Posted by Dan Markel on May 23, 2009 at 04:36 PM in Current Affairs, Dan Markel, Deliberation and voices | Permalink

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Dan,

In a way, aren't you making Long's argument, or at least something somewhat similar to it? I take Long's broader argument to be that conservatives shouldn't think Kagan is so great just because of who was hired at Harvard when she was Dean. She opts to look at the total # and % hired, which I think is faulty for a number of reasons (some of which you mention). But I gather you somewhat agree with the broader point that conservatives shouldn't swoon over Kagan merely because of Harvard Law faculty hiring when she was Dean.

Posted by: Orin Kerr | May 23, 2009 8:48:28 PM

Hi Orin.
I think the point I was making was that no one (conservative or liberal) should, in the course of assessing future SCT Justice worthiness, swoon over *any* dean's experience or achievements regarding any kind of faculty hiring. It's a largely irrelevant inquiry fueled by untrustworthy evidence. By contrast, Long thinks that the hiring stats of conservatives to the faculty is a useful measure of some relevant quality or virtue that would be interesting to conservatives assessing whether Kagan should be nominated and/or confirmed.

But yes, if there's a broader point that Long and I agree on, it is that Kagan's candidacy should not be advanced by her record of faculty hiring; where we differ is that it also should not be torpedoed, and I take Long's post to be interested in having that effect--but perhaps I'm wrong about that.

Btw, I can imagine that Kagan is the most "dangerous" of the leading 3 candidates (EK, DW, SS) to some partisan conservatives (like Long?) b/c of her relative youth (compared to Wood) and her reputation for skillful coalition building and getting along with everyone (compared to SS based on views articulated in the Rosen piece).

Posted by: Dan Markel | May 24, 2009 6:36:56 PM

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