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Tuesday, August 03, 2010

Politics, Networks, Status, and Faculty Hiring

Brian Leiter has another item begging to retire what he thinks is the canard that conservatives face disadvantages in the legal academy.  One part of his argument is that it is wrong on the numbers, or at least more complex than the usual trope suggests.  Another, more interesting argument is that despite all the conservative complaints about the disadvantages they face, they have managed, through the Federalist Society and other networks, to give themselves substantial advantages that they don't fully acknowledge.

I think Brian is partly right and partly wrong.  My general sense is that genuine political conservatives on a law faculty are, in many places, still treated like martinis: everyone wants one or two, but three is considered a little de trop.  I think the notion that law faculties have their guns drawn for political conservatives is no longer true; that may once have been the case, but I don't think it still is, and the vocal sense of being victimized that still often prevails is now strongly overstated.  Faculties are no longer half as politically divided as they once were.  But my sense is that there is still a relatively low tolerance level beyond which additional vocal conservatives do provoke greater resistance from faculties than additional vocal liberals.  To paraphrase a standard saying in journalism, three conservatives in a law school faculty are in most places considered an acceptable trend; four is considered a deluge.  

I think Brian is right to suggest that the networking aspects of the Federalist Society, in particular, are very important.  (I'm not sure whether any other conservative groups fit this profile; one would be far better off for hiring purposes coming from the Inc. Fund, say, than from a conservative public-interest litigation group.  I do not mean to equate them for all purposes; the Inc. Fund is also very, very selective.)  This isn't quite the same as hiring, and we should be clear on that difference.  Having hob-nobbed with the Federalists won't get you a teaching job, even though it may help you get other credentials, including a clerkship, that make one a prospective teaching candidate.  It may even hurt you a little.  But if you do get hired, you can very quickly amass much more (localized) fame and many more speaking invitations and other opportunities than you might have if you operated without such a network.  The same, incidentally, is true of other affinity groups.  Many other groups, not necessarily political but often coincident with liberal political views, have also done a splendid job of recreating localized versions of the master's tools, not to tear down the master's house but to create well-decorated alcoves within that house.  The reproduction of hierarchy is definitely alive and well among a variety of ostensibly non-hierarchical affinity groups in the legal academy. 

What Brian doesn't say is that there are also broader networks that are coincident with liberal political tendencies.  They are often not about politics in the same way that the Federalist Society is.  They are far more about status and prestige.  In the legal academy, liberals are not pure egalitarians, by and large.  They're more likely to be status snobs.  That means that just being liberal won't help you much (although neither will it hurt).  But if you went to one of the top law schools, did a clerkship for a well-respected judge, worked either for a high-level fancy firm or for a number of public interest groups, and have the right elite sponsors in the legal academy, you have a definite leg up in the hiring process.  And many of these things will tend to coincide, more closely than they need to, with conventional liberal political views; for example, the "right" judges and the "right" faculty sponsors will often turn out to be liberal and to select and promote like-minded individuals.  (Not in every case, just often.)  As between a candidate with a clerkship for a conservative judge, work at a conservative firm or group, and conservative mentors, and one with similar liberal credentials, I think the latter credentials are more likely to be treated as the kind of "elite" credentials that signal a viable teaching candidate.  

I think that is the way -- through perceived elite status, not through simple politics -- that liberal networks tend to perpetuate themselves and still give liberal teaching candidates definite advantages.  It is worth considering whether we place more weight on some of those credentials than we should, or whether we should make a stronger effort to think about how those credentials tend to be accompanied by liberal political views and to advantage the "right" kinds of liberals.  Those networks are far more diffuse than the more nakedly political network represented by the Federalist Society, and thus more difficult to pin down as political or even to notice at all.  But they're emphatically still around.  There is absolutely nothing wrong with selecting the "best" candidates in faculty hiring.  But we ought to be more willing to examine the criteria we use to indicate who the "best" candidates are, and to ask whether they sometimes carry more of a political valence than they should.      

Posted by Paul Horwitz on August 3, 2010 at 10:48 AM in Paul Horwitz | Permalink


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@AnotherLawAnon: every body of law has a set of right and wrong answers, but those things are almost never a subject of modern scholarship. Modern scholarship in most fields is about interdisciplinary synthesis, extensions, law reform proposals, and analysis of the law's real-world consequences, and most of that is deeply political.

Posted by: lawanon | Aug 4, 2010 2:39:13 PM

There is, unfortunately, a common perception that constitutional law is just politics. However, most of the Constitution is a series of clear commands: each state has 2 senators, the President can serve for a maximum of 2 four-year terms, there is one Supreme Court, states can't wage war, Congress can collect income taxes, and so on. I suspect that the notion that constitutional law is politics derives from an unhealthy focus on individual rights cases (involving abortion and such) that are decided by the Supreme Court. Those cases represent a highly unusual set of cases. They are not representative of the millions of constitutional decisions that are made, without much debate, every year in the lower federal courts and in the state courts. And even at the Supreme Court, describing outcomes as political is naive. In any number of cases, it isn't clear what the liberal or conservative position is: is upholding a federal law restricting abortion conservative (because it's abortion) or liberal (because it enhances Congress's powers)? Is upholding affirmative action conservative or liberal? On the one hand, the decision would undermine the policies of big corporations. On the other hand, it would support a claim of race-based discrimination. Moreover, the constitutional law as politics view reflects little understanding of the litigation process. The Supreme Court hears cases that are presented to it in a very specific way, with specific facts found below, and with specific arguments made by litigants. The case history (which the "it's all just politics" view tends to ignore) constrains what the justices can do even if they were inclined to act politically. Finally, viewing constitutional law as politics doesn't capture what the justices themselves understand their role to be. They are all genuinely committed to finding the correct legal answer. The fact that there can be disagreement doesn't mean the disagreement is just politics. And, of course, no competent lawyer would make a political rather than legal argument to a judge. So whether constitutional law is politics is a question that has little relationship to the practical work of lawyers.

Posted by: Jason Mazzone | Aug 4, 2010 11:34:56 AM

Come on--It's perfectly possible for an area of law to have many parts "where there are right and wrong answers as a matter of law," and for scholarship in the area to be deeply ideological. I assume this describes most active areas of scholarship--in some fields the ideology may be disguised, but it's there in all but the most backwater of academic fields.

Posted by: athirdprof | Aug 4, 2010 11:25:12 AM

The difference is between areas of law where there are right and wrong answers as a matter of law, and areas where it's just politics. That the bankruptcy code reflects an ideology does not alter the fact that it's a real code, with lots of legally prescribed answers in it.

Posted by: AnotherLawAnon | Aug 4, 2010 10:00:41 AM

No, enormous chunks of bankruptcy and corporate law scholarship are nothing but ideology, pure and simple. More so than significant parts of con law, actually.

Posted by: lawanon | Aug 4, 2010 9:35:16 AM

You really don't think there is a difference between the role of political ideology in huge swaths of constitutional law as opposed to its role in corporate law? I took him to just be making Epstein's point, which is obviously right.

Posted by: AnotherLawAnon | Aug 4, 2010 9:19:02 AM

Brian Leiter wrote: "Political ideology doesn't really figure in scholarship outside of fields with little law, like constitutional law."

This is really loony. No political ideology in bankruptcy law scholarship? (think Liz Warren). None in payment systems? (think statutes regulating credit cards). None in corporate law? (think exec compensation, shareholder primacy). None in securities? (think proxy access rules) None in IP? (think debates re patents and copyrights as incentives to produce knowledge). None in labor law? (think the proposed statute on union elections). None in torts? (think caps on medical malpractice damages). No political ideology in antitrust scholarship, in administrative, environmental, immigration, family, election law, criminal law, etc etc? Really?

You can't talk about Brian's post seriously. He is just being silly to be provocative and cause stir. Next time, he will write that the Earth is triangular, and you guys will hotly debate this.

Posted by: lawanon | Aug 4, 2010 4:14:47 AM

"I think what you're saying is that you don't like political activist "movement conservatives", and that you happen to have met several who were active in the Federalist Society."

Pretty much, except that there are some movement conservatives whom I do like. It is true that some of the ones who have annoyed me were movement conservatives first, and members of the Federalist Society second because they felt FedSoc membership would provide a valuable signal that they self identified as conservatives in a liberal academic environment. (It may be that they, along with other people, misapprehend what FedSoc membership should signal). It's also true that I've met many more Federalist Society members through social connections and involvement in campaigns than through law school faculty involvement, which might also skew my perceptions. That said, I didn't intend to go on a rampage against movement conservatives, Federalist Society members, or anyone else; I simply wanted to note that the sets of academic conservatives and academic Federalist Society members were not coextensive.

Posted by: Anon | Aug 3, 2010 4:36:51 PM

"FedSoc -- although I suspect it has many more movement conservatives among its members than radical anarchist libertarians!"

Among law professors, at least, it's closer than one might think.

"I did not take his/her comment to indicate that he/she finds all conservatives tedious."
No, the comment was that Anon finds the type of conservatives who affiliate with FedSoc to be tedious, but since the FedSoc encompasses all manner of conservatives, (and quite a substantial minority who don't identify themselves as conservatives), the implicit meaning is either that all conservatvies are tedious, or that Anon doesn't really have much exposure to the Federalist Society.

Posted by: David Bernstein | Aug 3, 2010 3:51:36 PM

Jonathan, I am inclined to agree with your descriptions, and to note that they are not only applicable to conservatives. I think our possible disagreements about numbers are less important than our agreements about how these phenomena can work.

David, "anon" has provided his own defense, which you may or may not agree with. I wanted to add that although I think "anon" understated the diversity of the FedSoc -- although I suspect it has many more movement conservatives among its members than radical anarchist libertarians! -- I did not take his/her comment to indicate that he/she finds all conservatives tedious.

Posted by: Paul Horwitz | Aug 3, 2010 3:36:34 PM

"I also have known altogether too many who are doctrinaire and devoted to making sure movement conservatism is sufficiently 'pure.'" I've met some of these, but these tend to be political activist types, not academic types. And given that the Federalist Society has no set ideology, I'm not sure what ideological "purity" would mean in the context of the Federalist Society. I think what you're saying is that you don't like political activist "movement conservatives", and that you happen to have met several who were active in the Federalist Society.

Posted by: David Bernstein | Aug 3, 2010 3:31:16 PM

Perhaps I don't get out enough. While I have known some delightful people who belong to the Federalist Society, I also have known altogether too many who are doctrinaire and devoted to making sure movement conservatism is sufficiently "pure." It's the little gybes along the lines of "self-styled 'conservative'" that would call for me to justify my own self-identification (as if anyone besides me cares) that create the tedium.

It's an interesting jump on your part to think I would find people not tedious because they are left of center. I find plenty of liberals tedious, and particularly the academic ones who parrot received positions that they've never actually thought about.

Fact is, I suppose, I'm just a curmudgeon. This is becoming tedious, so I'm out.

Posted by: Anon | Aug 3, 2010 3:14:05 PM

"I also think that movement conservatives of the Federalist Society ilk don't define or encompass conservatism. There are plenty of conservatives who find members of the Federalist Society tedious in the same way they find outspoken devotees of Ayn Rand tedious,"

What a bizarre comment, especially coming from a self-styled "conservative." The Federalist Society membership encompasses ideologies ranging from populist statist conservatives to radical anarchist libertarians to pragmatic moderates. It encompasses "types" ranging from the scholarly and studious to gladhanding political climbers and everything else you can think of. Intellectual interests could be anything from con law to i.p. to anything else, without any expectation that one holds any particular view on any of these subjects. Reliogious and social views, too, are all over the map. And so on. If someone finds "members of the Federalist Society" in general to be tedious, it means he finds anyone of any ideology, personality type, etc. to be tedious, if that person is not left of center. Unlike "outspoken devotees of Ayn Rand," nothing about being a member of the Federalist Society denotes adherence to any particular view of the world, nor, for that matter, to outspokeness. I find it hard to believe that anyone who is both "conservative" and actually familiar in any meaningful way with the Federalist Society could make such a comment, but you never know.

Posted by: David Bernstein | Aug 3, 2010 2:51:30 PM

Paul --

I agree with you that conservative claims of conscious bias against them in the academy are often overstated. Still, I have a few quibbles.

First, I think you are underestimating the extent to which law faculties (like other groups) tend to perpetuate themselves, even if they are not conscious of doing so. That is, many faculties have a tendency of hiring individuals with similar scholarly interests, who ask questions they find "interesting," with whom they can identify, etc. This has the effect of replicating the existing biases of existing faculty. A similar unconscious dynamic frustrates many efforts to achieve other sorts of diversity on faculties as well.

I think it's also the case that on many faculties it is easier to stop a candidate from being hired or considered than it is to get one hired. This means, at least on some faculties, that candidates out of the ideological mainstream could be blocked even if most on the faculty do not consider ideology in hiring decisions. This sort of process reinforces faculties' natural tendency to replicate themselves, as it makes it more difficult to hire those outside of the "mainstream."


Posted by: Jonathan H. Adler | Aug 3, 2010 2:50:12 PM

I clerked for a conservative Supreme Court justice. I was conservative, as was one of my co clerks. The other two were unreconstructed liberals. From clerks I've known, I would think the correlation is pretty weak. You tend to take the best clerkship with the best judge that will take you, and the good ones of any ideology are picking based on qualities that make ideology at most a secondary factor.

I also think conservative is way too diffuse a term to mean much. I don't sense much bias in the academy against the kind of conservative who believes in markets or who distrusts the efficacy of government regulation. I think, by way of contrast, that someone who, for whatever reason, vocally opposed gay rights would be persona non grata anywhere I've been (I confess that my own fairly strong reaction would be to distance myself from such a person in any non-professional environment) and that outspoken opponents of abortion rights could face similar issues. These are positions, however, that have substantial support in the general populace and in the political sphere.

I also think that movement conservatives of the Federalist Society ilk don't define or encompass conservatism. There are plenty of conservatives who find members of the Federalist Society tedious in the same way they find outspoken devotees of Ayn Rand tedious, even though they may themselves believe there are virtues in the separation of powers and that business can be a creative force. I would hate for the few "conservative slots" to be reserved for card carrying organization members.

Posted by: Anon | Aug 3, 2010 2:15:22 PM

Paul -- lovely post and I welcome the phrase 'three martini conservative.' Actually, I don't want to express any view on the underlying question of who has a leg up or down in the hiring process (my "general sense" would be different, but just as (un)reliable, I think, as yours), but I read through the study based on which it is claimed that 60% of new hires have no discernible ideological valence, and it seems to me extremely strange on a number of fronts, especially since, as a 2009 hire, I seem to be one of the subjects of the study.

First, I am very dubious about the use of the nominating president of a judge for whom the candidate clerked (perhaps this ties in a bit to some of your thoughts in the later paragraphs). Maybe this works for the Supreme Court, or if one clerks for judges who really look for ideological qualities in their hires, but I doubt that most people who clerked for judges at the federal appellate level or district court level really share the political ideology of their judge, let alone his or her nominating president. Many clerk for those judges because they want the clerkship experience and they were lucky enough to get the job. My own situation is that I clerked for a district court judge that was nominated by George W. Bush. My co-clerk was probably slightly to the left of me, though it was close. I would describe that district court judge as a moderate Republican. Then I clerked for a senior federal appellate judge. That judge was nominated by Jimmy Carter. I would characterize my politics as to the right of that judge on some, but not all, issues. One of my co-clerks for that judge was to the left of me. The other was to the right. At all events, I am skeptical that -- setting aside a handful of judges -- the party of the nominating president makes any difference at all.

Second, I also don't understand why the authors of the study didn't ask the subjects that they were studying how they would self-identify. I understand that self-identification should not be the only marker for such a study, but why disregard it entirely? Perhaps they thought they would not get a straight answer?

Third, reading the first piece of scholarship on someone's CV and glancing through the remaining titles is an exceptionally poor way to determine their ideological orientation. It can pick up grossly inappropriate statements by those foolish enough to engage in partisan attacks *in their scholarship* but it misses the music of the symphony for trying to distinguish whether there's a screeching piccolo somewhere in there. On this ground, I agree with Professors Leiter and Epstein -- it can be quite difficult to distinguish political ideology from scholarship, and a good thing too (having said that, there are better and worse ways to go about ferreting this out, and I don't think bald-faced partisanship in one's scholarship is remotely the best test).

I'll stop (though there is more to say, including the absurd use of political donations to determine political leaning), but will also agree that any study purporting to tell us whether we ought to be concerned about ideological bias in hiring needs better -- more subtle, more sensitive -- variables. I freely admit that those are quite difficult to pin down and test, however, as the bulk of your post suggests.

Posted by: Marc DeGirolami | Aug 3, 2010 12:05:27 PM

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