Some Side Notes on One of the Controversies of the Day

These days I am affirmatively uninterested in weighing in on the average culture-war controversy, regardless of my views on its merits. In any event, by the time I get around to doing so usually all the obvious points have been made and bones have been well picked over, which just leaves statements of affirmation or solidarity on one side or another--and those really don't interest me. I offer, instead, two side notes on the discussion of Ilya Shapiro and Georgetown Law, repeating once more that they are side notes and that I quite understand that most people with views on the subject are passionate about the the main issues.

1: One aspect of Shapiro's tweets that got less attention, understandably I suppose, is the suggestion that Sri Srinivasan is "objectively" the "best pick" for a current opening on the Supreme Court. I cannot imagine what it means to talk about anyone as "objectively" the best candidate for a Supreme Court seat. Such a creature is a unicorn, not because it's rare but because it doesn't exist. There may be obviously poor and obviously acceptable picks according to the general sense of the legal and political culture of the day. (At least initially. The goal of the politics of the confirmation-and-fundraising process is to paint the nominee as the worst or the best possible candidate, and by the end of that process an astonishing number of people have persuaded themselves that these propositions are true.) But beyond that range there can be no metric that allows us to talk about an objective best pick, in terms of either the "legal" or "political" merits, to draw a weak distinction.

This is not a problem in itself, of course, because being the "best" is not a prerequisite for an Article III judgeship any more than it is for the presidency or most other offices. (If it were a prerequisite, and if there were such a figure, perhaps the President would be better off nominating that person for the district court bench, so that this extraordinary figure could handle the difficult job of intimately affecting people's lives with much less assistance from either counsel or staff. I'm not sure putting the nation's "best" lawyer or judge on the Supreme Court is really an efficient or necessary use of limited resources. The highest or most prestigious office is not necessarily the office that needs the best person; it's just the place that most "best" people are understandably, if unfortunately, eager to get to.) But talking in terms of "objective" best candidates for the office is a problem, I think. It is a problem if the person using the phrase believes it, a larger problem if he or she doesn't but indulges in bullshit language, and a wider problem if it accustoms others to using such language. 

2: One way to think about some of the whole affair is as a reminder that it's not just individuals who are harmed by Twitter and other social media, all the bad habits they cultivate, and all the vicious cycles that eventuate. Nor is it just individuals who are culpable in it. Take the dynamic of major newspapers. They are hemmorhaging traditional readers, traditional advertising revenue, and public trust. They respond in various ways. One is to encourage their reporters to take to social media to promote the paper, their own stories, and themselves, and/or hiring reporters who already have such a profile or are eager to gain one. Another is to focus on newsletters, podcasts, and other subscription features that foreground individual reporters' personalities, and to market those personalities in a variety of ways--an approach that dovetails with the encouragement of social media presence. The reporters--all but the most disciplined and deliberately boring ones, I suppose, but those are not the ones who draw attention and get newsletters of their own--inevitably end up opining, cracking wise, saying something foolish, picking fights or engaging in them, and so on. The quality of the institution declines, and so does the public trust in that institution. The newspaper fires a reporter here, suspends one there, and perhaps issues an official statement paying lip service to the idea that its reporters are supposed to maintain certain limits in how they tweet. All this may be sincere, or damage control, or both. Regardless, it remains heavily addicted to the social-media-personality model. At some point, it is fair to see the institution as being just as responsible for that model's negative features as its positive ones, and as having gambled that a loss of trust and sobriety in the long term is worth it for the sake of hanging on or thriving in the short term. Circuses that put on high-wire acts and advertise the fact that the acts will perform without a net are not trying to kill their performers, but they are selling the exciting possibility of a highly public disaster and so accepting a certain number of foreseeable tragedies. 

Self-promotion on social media is increasingly the coin of the realm for any number of ambitious public-facing institutions--including law schools. Perhaps it is not an institutional focus. But law schools, like newspapers, magazines, political parties, and plenty of other organizations, unabashedly like having prominent people, and a social media presence has become a major component of prominence. Law schools, by and large, like boasting of having someone who is well-known, and part of that means having someone who writes op-eds, appears frequently in the press--and is widely followed on Twitter. (The most frequent rationale I hear from law professors for being on Twitter is "self-promotion.") At least on social media, "prominence" is hard to distinguish from "personality," and "personality" at the margins easily becomes "notoriety." Because social media prominence depends substantially on speaking frequently, speaking wittily or vigorously, and speaking bluntly or provocatively (the two easiest routes to a widely noticed statement of 280 characters or less; I'm sure there are lawprofs who devote their Twitter feeds to long variations on "It's complicated," but I doubt they get the lion's share of the attention), it is a high-wire act. Unlike most circus acts, there is definitely no net. 

I do not think law schools, or their marketing folks, are actively seeking notorious hires. I do think they are as eager as anyone else to boast of having famous people. Georgetown's announcement of Shapiro's hiring emphasized not only his skill and experience, but his status as "one of the premier public commentators on constitutional law" and spotlighted the fact that he "appears frequently on radio and television commenting on Supreme Court decisions and other constitutional matters." The announcement closed, as contemporary press releases often do, with, "Follow the Constitution Center on Twitter at @guconstitution and Shapiro at @ishapiro."

One may be inclined to say, "That's just how things are done today," or to distinguish a law school's marketing and PR operations from the rest of the institution. I'm not sure either statement is accurate or sufficient. (I might add that I often think of "making a splash" as one piece of a decent faculty hire, and I seriously doubt I am alone in this.) Of course none of us are thinking, "We certainly hope our eagerness for institutional public prominence will eventuate in a painful and embarrassing controversy." But we might consider the degree to which our institutions, like many others, are dependent on or addicted to a model in which a certain number of painful and embarrassing controversies are an inevitable and predictable feature--not some unpredictable accident, or unexpected failure on the part of the prominent person one set out to hire, or intrusion on the normal life of the institution from the barbarians outside the gates, but something in which we are actively and eagerly participating and for which we bear our own share of culpability. This is not the world we happen to live in. It's the one we have chosen and continue to choose.