Debate: Nicholas Rosenkranz & Eric Posner, "Intellectual Diversity in Academia"
Professor Nicholas Quinn Rosenkranz teaches constitutional law and federal jurisdiction at the Georgetown Law in Washington, DC. He is currently developing a new theory of constitutional interpretation and judicial review. The first installment, entitled The Subjects of the Constitution, was published in the Stanford Law Review in May of 2010, and it is the single most downloaded article about constitutional interpretation, judicial review, and/or federal courts in the history of SSRN. The second installment, The Objects of the Constitution, was published in May of 2011, also in the Stanford Law Review. And the comprehensive version is forthcoming as a book by Oxford University Press.
Professor Rosenkranz has served and advised the federal government in a variety of capacities. He clerked for Judge Frank H. Easterbrook on the U.S. Court of Appeals for the Seventh Circuit (1999-2000) and for Justice Anthony M. Kennedy at the U.S. Supreme Court (October Term 2001). He served as an Attorney-Advisor at the Office of Legal Counsel in the U.S. Department of Justice (November 2002 - July 2004). He often testifies before Congress as a constitutional expert—most recently before the Senate Judiciary Committee, regarding the nomination of Loretta Lynch to be Attorney General of the United States. He has also filed briefs and presented oral argument before the U.S. Supreme Court. His most recent Supreme Court brief, in Los Angeles v. Patel, was cited by Justice Alito in dissent.
Professor Eric Posner is Kirkland and Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair. His current research interests are international law and constitutional law. His books include The Twilight of International Human Rights (Oxford, forthcoming 2014); Economic Foundations of International Law (with Alan Sykes) (Harvard, 2013); Contract Law and Theory (Aspen, 2011); The Executive Unbound: After the Madisonian Republic (with Adrian Vermeule) (Oxford, 2011); Climate Change Justice (with David Weisbach) (Princeton, 2010); The Perils of Global Legalism (Chicago, 2009); Terror in the Balance: Security, Liberty and the Courts (with Adrian Vermeule) (Oxford, 2007); New Foundations of Cost-Benefit Analysis (with Matthew Adler) (Harvard, 2006); The Limits of International Law (with Jack Goldsmith) (Oxford, 2005); Law and Social Norms (Harvard, 2000); Chicago Lectures in Law and Economics (editor) (Foundation, 2000); Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives (editor, with Matthew Adler) (University of Chicago, 2001). He writes a column for Slate on legal issues. He is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute.
Presented by the Federalist Society on April 25, 2016.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: The Federalist Society has a wonderful debate that we prepared for you today. We're very excited. We have Professor, Nicholas Rosenkranz from Georgetown Law coming here to discuss intellectual diversity in academia along with our very own Professor Eric Posner. Professor Rosenkranz teaches constitutional law and federal jurisdiction at Georgetown Law. He received his BA and his JD from Yale before going on to clerk for Judge Easterbrook of the Court of Appeals here in the Seventh Circuit. He then went on to clerk for Justice Kennedy at the Supreme Court. And many of you are familiar with Professor Posner, but Professor Posner is the Kirkland & Ellis Service Distinguished Professor here at the University of Chicago. He received his undergraduate degree from Yale and his law degree from Harvard before clerking for Judge Stephen Williams in the Court of Appeals for the DC Circuit. So with that, I will hand it over to Professor Rosenkranz.
Rosenkranz: Thank you. I'm delighted to be here. I was actually here talking about this same topic a year ago. Urge your Federalist Society to know that I am capable of speaking about other topics, but they like this one so I am back talking about it again. And I do think it's an extremely valuable topic for the Federalist Society to take on. It is, as it were, the raison d'etre of the Federalist Society. This is why this organization exists because of a perceived lack of intellectual diversity in the legal academy. So the Federalist Society brings voices to law schools that you wouldn't otherwise hear, but usually on substantive topics, it's good to occasionally take a step back and talk about why this is necessary. Why do we need the Federalist Society to bring such speakers to campus? The reason is these are voices that are not represented on your faculty.
Rosenkranz: So that's what we're talking about here today. I should say, by the way, I'm not sure if this is a debate. I think Eric and I largely agree, but, I'm delighted that he's here and so thank you for doing this again, Eric did this with me last year. Okay so there is some new empirical data on this, which I am not going to present you, but you can find it. It's written by a guy named James Philips, he's doing a PhD on this topic at Berkeley, and he's just published a paper about this. You can take a look at it. We also had a day long conference on this topic at Stanford just a few weeks ago. Actually, Harvard has done one, Yale has done one, and this is the third which we did at Stanford. I think these are very valuable, and actually Chicago might want to consider doing a similar thing some time.
Rosenkranz: So we just had this conference, James Philips gave the data, and you can take a look at it on your own. I'm not going to really do for you the data. I'll just tell you that at Georgetown, where I teach the denominator, the number of professors on our faculty is 125 and our liberal:conservative ratio is we have 123:2. So, uh, that's, you know, more than it was 10 years ago. It's only one. So we're happy to admit that progress, but I'm not sure how much more progress is necessarily in the offing at Georgetown. So 123 to 2. I think this is bad in all kinds of ways. I think it's a particularly ironic kind of, I think it'd be a shame in any academic department and by the way, there are lot of other academic departments in the university which are similar.
Rosenkranz: I think it's bad in all of them, but I think particularly ironically bad in a Law School because the premise of American law is that the best way to get to truth is through the clash of zealous advocates on both sides, and yet on many of the most important issues of the day, one side is simply, wildly dramatically underrepresented or just not represented at all. Simply never hear that voice on your campus. So it makes it so kind of ironic state of affairs I guess at elite law schools. I think it's bad in a number of ways. I'm going to focus really on one particular way that I think it's bad. To be blunt about it, a certain kind of intellectual laziness and mushiness can set in if you find yourself in a room all day, every day with people who agree with you.
Rosenkranz: And so I would say at a lot of the great law schools in this country, you know, in the workshops, premises are not questioned. People get away with claims that there's just no one around to refute. And so because certain kind of intellectual mushiness will set in and one kind of perverse result is these great law faculties become actually startling poor at predicting what would actually happen in a US court room. Like what is actually how American law is actually going to work out in the world because these folks are so far to the left of the American judiciary. So I'm going to, for that point, I'm going to give you three examples. So first, consider Rumsfeld v. Fair. So if you're not familiar with this case, the government said federal government said, announced its "Don't Ask, Don't Tell" policy regarding gays in the military.
Rosenkranz: And many schools were upset about that. And so a lot of schools reacted by saying, well, military recruiters can't come on campus because they are discriminating against homosexuals. Well, the federal government responded to that, Congress responded to that by passing the Solomon Amendment which said, um, if you don't let our military recruiters on campus, you don't get any federal money. Now, lots of these great, elite law schools and law faculties filed suit against about the Solomon Amendment claiming that it was unconstitutional. And I would just take a minute to think about that. So the claim is we have a right to our federal money without those strings attached. Now that is the claim in the case. So now I was kind of new at Georgetown and not really inclined to pick much of a fight at this early stage in my career, but I did take the lead person aside at Georgetown and say I don't think we should do this.
Rosenkranz: I think it's a mistake, a mistake for Georgetown to sign on to this brief. And she said, um, I understand completely. You clearly have deeply held, religiously motivated objections to homosexuality. And I said, no, I don't and in fact, I'm in favor of gays in the military as a matter of policy. What I have really strong, passionate objections to are stupid legal opinions and this is making no sense and it's an embarrassment for Georgetown to be signing onto this thing. And uh, first I found she was really actually quite flummoxed by the idea that our policy view and our legal view might differ and that I thought in itself was kind of telling and troubling, um, she didn't quite know what to make of that, kind of dumbfounded by that idea. And really nobody in our faculty meetings had suggested the idea that this is a weak legal argument.
Rosenkranz: Nobody said that. And so she was kind of dumbfounded by that. But I think similarly dumbfounded when the case comes down, 8-0, 8-0. So these great legal minds of Yale and Stanford and Georgetown, and I'm not sure about Chicago, signed these briefs and things and they managed to persuade exactly nobody. Not Stevens, not Ginsburg, not Pryor. Nobody. Zero. So that I thought was a kind of a striking example, it was kind of early in my career as a law professor. Example two: consider the Obamacare case. So my colleague, Randy Barnett, formulated the idea, so Obamacare, as you know, requires everybody to go buy insurance. So it, as it were, commandeers individuals. The first law under the Commerce Clause which purports to require you to get up off your couch and go do something. You're actually violating the law if you do nothing.
Rosenkranz: If you just sit on your couch, you've failed to comply with this mandate. And that's new. Congress had never purported to do that before under the Commerce Clause, and my colleague Randy Barnett said, Congress can't do that. The Commerce Clause doesn't work that way. Congress can't require people to get off to get up off their couch under the Commerce Clause. Now to say that my colleagues at Georgetown rejected that view is, I think, understating it. They were, this view was met with really straight up ridicule at Georgetown and really threw out the legal academy. I mean, this was taken to be not only impossibly, but off the wall, bizarre, like a bizarre off the wall theory. I'd say if you'd taken a vote of the Georgetown faculty, you would have found it to be 123 to 2 on that question. And again, kind of shock, dumbfounded, shock in the academy when actually that issue at the court comes down 5:4 the other way, Randy Barnett turns out to be right.
Rosenkranz: Congress actually cannot do that under the Commerce Clause. So an issue that was 123:2 at Georgetown, 5:4 the other way at the Court suggesting Georgetown is really not so good at actually predicting what's going to happen in the actual US Supreme Court that is not the one that they wish we had but the one we actually have. That was my second example, here's example three. This is more personal and it has to do with scholarships. So, uh, in a case called Missouri v. Holland, Justice Holmes concluded in 1920 that, we need a little substantive law here, if the United States enters into a treaty and the treaty promises that Congress will do something, promises that Congress will enact some statute, then Congress automatically gets the power to enact that statute even if it wouldn't have had the power otherwise. So, or to put the finest point on it, a treaty can increase the legislative power of Congress.
Rosenkranz: Congress didn't have power to do this thing yesterday. Now there's this treaty. Now Congress does have the power to do that thing, Justice Holmes held in 1920: a treaty can increase the legislative power of Congress. Justice Holmes held that in 1920 in a five page opinion with no reasoning at all. Literally not, no quotes of the relevant constitutional clauses, no nothing. It's simply just asserted. And that has been the state of the world and since then, 1920, he advanced, offered up no arguments at all. Now about 40 years later, Lou Henkin, an extremely esteemed professor of international law at Columbia, who had written the definitive treatise on international law, offered up finally, one argument in support of this conclusion. So offered it up in his treatise, he said he dug into the drafting history of the Constitution and he had found that in the Necessary and Proper Clause, it actually skipped that in an early draft of the Necessary and Proper Clause, it actually specified this.
Rosenkranz: It had said Congress will have power to enforce treaties, so to execute these promises that we make in a treaty, Congress shall have power to enforce treaties. It said in the Necessary and Proper Clause, in an early draft and they took it out. The Framers took that phrase out because they thought it was superfluous. They thought they didn't need it. They thought it went without saying with the text that they had. Now this is, for the kind of con law people, this is the strongest possible argument from constitutional drafting history, right? The drafts said exactly what you wanted to say, and moreover we know exactly why they took it out. They took it out because it's superfluous, implying that we all read the final draft to include this language. So I saw that, so I saw that argument in this treatise, now so it was already Holland that struck me.
Rosenkranz: You know, I wasn't sure about it, I saw this argument in this treatise and I thought, wow, that is very persuasive, that's about as persuasive as an argument from constitutional history can get, but let me just take two minutes and flip open the underlying documents to which he is citing, the Constitutional draft and see what it said. And so I just flipped to the page that he cited and, um, it turned out to be just false. Straight up false. The Necessary and Proper Clause never actually said that thing. Now, to be clear, I don't think Lou Henkin was lying. I think it was a plausible way to misread the history. There was some, I, I understand quite how you could've made this error, but fact of the matter, the clause simply, just never said this. Okay. So then I wrote that up and published that in the Harvard Law Review in 2005.
Rosenkranz: And Justice Scalia largely adopted my reasoning in his concurrence in Bond just a couple of terms ago. So that's, that's a happy part of the story. The point of the anecdote is definitely surely not that conservatives would never make such an error. Conservatives, of course, make errors like this all the time. Not really to embarrass Lou Henkin, but ask yourself, how is it that Lou Henkin's error was able to persist from 1972 to 2005. How did that happen? Had I read parsed the drafting history in some particularly nuanced way that nobody else was capable of, obviously not. What I did was extremely easy to do. So why was I the first person to do it? The reason I think is that Lou Henkin's conclusion was very congenial to 98% of the academy. So, the academy likes international law and they like congressional power.
Rosenkranz: And so this conclusion seemed to them right and congenial and so it would never occur to them to look. Right? To me, the conclusion seemed wrong. That's why it occurred to me to look. That's why I found the error. Conservatives could easily make such an error, but I'm here to tell you if a conservative makes an error like that, it gets corrected in 30 seconds. There are a hundred liberal academics who spot such an error instantly. This error persisted for 35 years, was cited by the Supreme Court, was cited by circuit courts and really like had shut down debate on this issue for 35 years, and nobody even flipped open the book. So that's maybe example three for like a pernicious effect of this intellectual homogeneity, and there's just no one around to correct errors. There's no one around to correct errors in these buildings. Now, the one thing that some of these folks might say, and I've heard this said, is we don't care actually about being good at predicting what will happen in the US courts.
Rosenkranz: Actually, that's not our project. Indeed, those folks at the US Supreme Court are just crazy, right wing nuts anyway, and who even wants to know what they are going to do in any given case. And that I don't think is a sufficient answer because even if your professors feel that way, I think actually most students don't. I think actually most students really do want to know what our US judiciary is likely to do in any given case. And it's kind of a shame if their faculty can't tell them. So, you know, to put the finest point on it. I'd say, you know, you all are paying whatever $150,000 to pay for this education in which you are being taught how to argue against hypothetical Republicans. And it really would be better if you learn how to argue against some real ones. I'll stop there.
Rosenkranz: Okay. Um, so, so this is not a debate, but it also doesn't mean that we agree with each other on everything. So I was asked to comment on Nick's talk, and I, you know, I agree with some of it and I don't agree with, with other parts of it. So, so let me give you, let me give you some general thoughts. So first of all, uh, one question is, is there intellectual diversity in law schools? That's a good question to raise. Um, I agree with Nick that there isn't really that much intellectual diversity in law schools. The question is a little bit more complicated then it sounds. So there's a difference between intellectual and ideological diversity. We may not care about ideological diversity as long as we get intellectual diversity. It may be that there's a connection between the two so you can't have one without the other.
Posner: I tend to agree with Nick that at least in certain areas of law, there is a connection between the two, especially public law. Um, but it's not always the case, but let me make a distinction between private law and public law. Nick is a public law guy, am I right in both fields. I think in private law, um, there is a, it's interesting. I think, you know, if you just counted up professors, far more of them, you know, are, are Democrats, liberals, whatever, then Republicans, conservatives, whatever. But the conservative professors have had a lot more influence and are, have been much more successful. Uh, just, you know, objectively if you look back over 30 or 40 years, they're the ones who are cited more often, discussed more often. And uh, and I think this is connected a little bit with what Nick has said, which is that, um, because the liberal academy is overwhelmingly liberal, there can be flabbiness. That is, we all agree with each other, we don't need to really have a debate about something. And that creates a kind of market opportunity for the people who disagree. And Nick's actually examples are very good ones, right? So people are being flabby and you may not agree with them, their politics that leads to the fat and then you can pounce. And that's really satisfying.
Posner: There's a sense in which it's actually an advantage to be a conservative sometimes in the academy because things are just not being said, and you can say them. Public law is different. Public law is the field there but it's much more overwhelmingly liberal and I do think that the conservative professors in this area are taken less seriously by the liberal professors than in the private law area. That's not to say they're not taken seriously, but I do think there's a kind of, uh, you know, uh these guys, you know, they're there and we have to talk to them, but they don't know what they're talking about. You know, interestingly, you know, so let me give a real example of originalism. So liberal law professors have been contemptuous of originalism for, you know, 40/50 years since, since it's sort of modern birth in the 1970s and none of them took it seriously.
Posner: They never wrote about it except to criticize a position which originally was held only by a couple people. And then in the last, certainly 20 years, it's just all the rage and the law reviews and in public debate, and although I don't think that the liberal law professors have changed their minds ultimately about originalism, some of them have actually, they, they do need to address these arguments and the people who who have promoted it have achieved a great deal of prominence as a result of it. I've always thought that there's actually a bit of an advantage in the academy and being in the sort of intellectual minority. You are forced to be much more rigorous about your arguments. You develop a thick skin which is a good thing, and you have more influence.
Posner: That leads to my second topic, which I just sort of jotted down. It doesn't matter about intellectual or ideological diversity, and I'm not sure I, you know, I think, you know, it can matter. It does matter in some situations, but I'm not sure it matters that much. Again, it depends how intolerant, you know, the majority view is of the minority view. Sometimes they're very intolerant, sometimes they're less intolerant, but I do think that, uh, oh, and then there's one other thing that I think it's important to understand, which is academics, you know, like everybody else, they're motivated by whatever, you know, glory, not money, but glory. Getting, you know, sometimes it may be it's getting excited by a court or your ideas entering the public debate or whatever it is and just to, you know, put it concretely, although at the risk of some exaggeration, either there are liberal professors who take great delight in pointing out errors that other liberal professors have made.
Posner: And similarly for conservative professors and conservatives because what you want to do is knock someone down and humiliate him or her and get everybody to like cheer, right? That's the great thing. And if you, if you're not finding an ideological soulmate in the, in the process, well and whatever. But there are some people who are really ideological and who wouldn't do that. Um, I don't think that's the majority of people. I think, you know, there's a delight. People are drawn into an academy because they want to disagree, they want to fight with people over ideas, so, so it can matter, but I suspect it doesn't matter as much as, as well, I don't, I probably don't think it matters as much as Nick does. Third thing I wanted to and I have one more after this third, third question: is it the result of discrimination? And is our liberal law professors who dominate the faculties,
Posner: I think it all law schools, certainly the sort of top law schools, and really dominate Georgetown is not, it's not an outlier. Most of the top law schools, the large majority are people who are liberal. Do they discriminate? That is do they say, well, we don't want any conservatives to spoil our country club atmosphere. We want, we want people like ourselves. So I've been at two law schools, this one and at Penn before I came here. In my entire, uh, whatever it is, 20 years or so. I can think of one example where there was probably a little bit of that going on. A little bit. But remember also that faculties make their decisions collectively. Uh, so anybody can vote however they want, and uh, and, and most people will not fully articulate their reason. I didn't really like that person's scholarship, whatever it is that, that's the basic thing that people are thinking about.
Posner: And there was one, early in my career, there was one trouble, so not here in other words, there was one, one I was pretty sure people didn't like this guy because he was conservative. They didn't say that, obviously, but I thought that was the case, but that's really it. Okay. And I've seen, you know, a huge number of appointments. Now I think a more serious problem is that people do this unconsciously. Uh, so go, let's go back to originalism. I'm sure it's been the case that liberal law professors, I mean, I suspect it's been the case that liberal law professors say, well, that guy's an originalist. He must be an idiot on the faculty. Because they genuinely believe that originalism is not a defensible position. And so therefore, you know, logically somebody who accepts that position, you know, isn't very smart. Right? That's got to be the view. Now, I don't think that's a fair view, but it's a possible view for people to have and it's, and it's, you know, this is not a good example. Think of whatever crazy view you want. Someone's a flat earther. They're not going to hire this person. He's probably not super intelligent if he thinks the earth is flat.
Posner: So does that happen? Probably. It does happen. I do think that it probably does happen. Um, uh, so that leads to my final topic, which is what do we do about it? Uh, Nick hasn't said what he would do about it. I don't want to, I don't want to put words in his mouth. You can ask, you should ask him, but should there be, to put it bluntly, should there be affirmative action for conservatives. That's the blunt question. Should law schools say we don't have enough conservatives, we have too many liberals as a result of the harms that Nick has identified and so we should just hire more conservatives so that we now have more intellectual diversity. And really it's a lot more complicated than that. It's not just conservatives, you know, there are different types of conservatives or people who have essentially conservative views.
Posner: They're even rarer in the law schools than more libertarian-type conservatives. So I don't, I think the answer is no, that's my view. The answer is no. I think people in faculties need to be very careful to examine their own assumptions if they have a negative reaction to someone, they should think very carefully about why they have that negative reaction. But I don't actually think it's a good idea to consciously and even unconsciously to the extent that it's possible, allow people's political views to play any role whatsoever in their decision of whether to hire them or not. Because I think that ultimately is damaging. And the aspiration is that ideology, politics will not play a role in scholarship of course, it does, unavoidably, because people often cannot, you know, get outside of their ideological boxes. But it's, it's not something that we, we, we, we want. And uh, and I don't think we should encourage people, faculty members, to think in those terms. And I think there's, you know, there's always a danger when you start introducing factors that are not relevant to the particular merits, which is, which is basically research and teaching abilities, you will end up getting, you know, the sort of a flabbiness that you're trying to avoid. Right. You don't want to make those compromises if you can avoid them. So with that, I'm looking forward to Nick's response.
Rosenkranz: Should we sit?
Posner: Yeah we should sit.
Rosenkranz: Should we take questions?
Posner: Yeah we can take questions.
Question One: So one of the questions I have is regarding the increased focus on freedom of speech on college campuses. And I was curious as to whether or not you think that that one, will it ever affect law schools and two, whether it would affect the hiring practices in those schools to make the views maybe less offensive to law students?
Rosenkranz: Yeah, that's a good question. I'm on the board of something called the Foundation for Individual Rights in Education which is really at the forefront of these battles about free speech on campus. It's definitely thing that I'm extremely concerned about in general, but I haven't seen much evidence of this problem in law schools yet. I could easily imagine that we will see it, but I haven't seen much of it yet. So, uh, I'm in this business, so I'm essentially censoring offensive views. I haven't seen much of that in law schools yet.
Question Two: Yeah. Just to follow up from Professor Posner's suggestion, do you have any idea of how we can fix the lack of conservative professors?
Rosenkranz: Yeah. Okay. So, um, so maybe I'll, maybe I'll respond to a couple of points Eric made and then I can get to that. So, um, uh, yes, I think there, um, it's quite true that conservatives, uh, do better than liberal or conservative academics pound for pound are doing better. That is they are writing more on average, Jim Phillips, by the way, finds that on average an article a year more conservatives than liberals. And moreover, uh, I think it starts at half an article a year and the liberals decrease and the conservatives stay the same. So by at year 30, it's an article per year, more quantity of scholarship, citation counts and placement in journals and things. And uh, so conservatives do do better actually than liberals pound for pound. Now, one explanation is the one Eric offered, which is they are market opportunities. There's nobody around to correct this except you.
Rosenkranz: Then you can correct it and be published in our view. There is though a second possible explanation, which is a, this is a result of discrimination. So, uh, you know, what I would say is, um, the conservatives are on average, dramatically under placed relative to their credentials. So, uh, you know, the, the hand of the one or two conservatives at Vanderbilt or whatever are kind of should be at Harvard and they aren't. And so it's unsurprising that pound for pound, they're much stronger than the rest of the faculty at that school. So they are kind of systematically under placed and that's part of the explanation for the phenomenon Eric's talking about. Okay. Now, um, so is there discrimination in the hiring process and this is all to get to what should we do? Is there discrimination in the hiring process? I agree it is rare to hear somebody say we shouldn't hire this person because they're conservative, although there are some and I have heard some such stories and indeed just to tell an anecdote.
Rosenkranz: So out of school when I was on the teaching market, I was told through the grapevine that somebody offered up in the faculty meeting on the topic the proposition that, um, we should first vote on the following proposition: I think anyone who worked in the George W. Bush administration should not be considered, rule that out of bounds. And then only if we vote yes on that when we get to the merits on, on Nick. So yeah, I think that does actually happen, but much more often, as a much more subtle thing which Eric is alluding to and is much trickier to get at, um, people who can't quite separate out their view of ideology from their view of the merits. And that is actually, it's a hard thing to do. So people who will say, you know, I just, and I hear this all the time at Georgetown, um, you know, I just, I found the work a little too formalistic and a little insufficiently attentive to real world consequences. And that is that the, um, you know, what I would say is in each of my 10 years at Georgetown, one of the strongest, if not the strongest candidate on the teaching market, was the conservative and in each year that was the answer.
Rosenkranz: The work wasn't, it was a little too formalistic and insufficiently attentive to real world consequences. And so we hired a total of zero in those years. Um, and it starts to look a little like a pattern if you see it enough times. Okay. So what do I think we should do about it? I'm not in favor of affirmative action for conservatives. What I'm in favor of is stop discriminating against them. That's what I'd like to see.
Posner: But let me just say a couple things. First on this, I'm a little more skeptical about the statistics. Um, and when, when Nick was here before I presented a paper, I guess I could have done it, did it again, that I wrote with that Adam Chilton, which, which did show that there was, you know, kind of bias in the sense that a person's ideological position as shown by their political contributions, which are, by the way all online, in case you're curious, people's views does predict to some extent the type of, you know, the type of argument that they make.
Posner: So for example, you know, for abortion rights, um, somebody who's contributed to a lot of Democrats is more likely to write an article supporting them than someone's who's contributed to the Republicans. So there's this kind of a bias which, which you know, is a matter of concern. And we wrote a whole paper talking about this. We did look at citations and we didn't find any statistically significant difference in the citations between a Republican-leaning and Democratic-leaning. There's this other paper by this guy, Phillips, which I read. And uh, you know, I have kind of
Posner: mixed feelings about, I think he did a valuable service. I'm not sure, I entirely believe everything he says, um, but, but it does sort of in terms of private law, which maybe I know better, I do think that it is the case that conservative, you know, scholarship written by basically conservative people on one side, the 70s and 80s maybe in the 90s, was much more influenced, influential than scholarship cited more often, just more influential generally. Law and economics is to a large extent a conservative, although not, not completely a conservative type of movement. Um, but, but I do think that when you say, well, don't discriminate. I mean that's, you know, that's what does that mean? I mean, so, so I think everybody agrees that sort of overt discrimination started with is totally unacceptable, but it gets a lot harder when people genuinely think that a type of scholarship is not that great, you know, and, and so the example you gave, which is actually better than originalism in part because it's much more complicated is the sort of formalism.
Posner: So you know, you know what formalism is and you could think that there's no ideological relationship between being a formalist and not being a formalist. I mean, it probably has more. It could have more to do with just how you, how you think judges should decide cases. It could, it could be based on anything. But as a matter of fact, I think it is true that conservative people tend to be more formalist than liberal people do. But, but you know, when people think about this, they don't say, well I'm a liberal so actually know I'm not a formalist. They just, that's just the way they think and they think formalism is wrong or right. Um, and I think it's very difficult to say to people, you know, you think this view is right that the earth is round, but you know, you have to put that off in a box and when you evaluate this person who thinks that the earth is flat, you know, you can't take into account the fact that he thinks that the earth is flat. Just look at his grades or something like that.
Posner: I, you know, people, I don't think people can do that, and so if you really try to eliminate discrimination and the way that, uh, that Nick suggests, what you would have to do is have this situation where people say, look, I just don't think his scholarships any good, but it says on a CV that he's a conservative or he's announced to us that he's a conservative, so okay, let's go ahead and hire them. And I, and I really do think that that would be destructive if that's how people thought.
Question Three: Are there any particular areas of scholarship and teaching that it would be maybe easier for a conservative wishing to enter academia to sort of focus on like can they sort of slip in under the radar, maybe?
Posner: Admiralty law for example?
Rosenkranz: It's almost certainly easier in private law fields than in public law fields. So yeah, so if you want to do contracts or you want to do corporations or something, yeah, your odds will be much better, and it will be much easier for you to conceal your politics if that's the route that you decided to go. You might, my resume already had so many markers on it by the time I was considering being a law professor, but some people do go that route. You know, on the one hand, that is advisable if you know that you want to be a law professor and if it's a tie for you, if you like contracts as much as you like constitutional law and this could easily be a good tie breaker, but I wouldn't really recommend to someone writing about or studying something they don't, they're not actually genuinely interested in just to get the job. Some people do it, but I don't think it'd be satisfying.
Posner: Yeah, I agree that the public law issues are just much more sensitive and the private law in private law, there are again, sort of ideological markers. People who are sort of in favor of freedom of contract and to be conservatives or people who think that judges should not intervene to rewrite a contract tend to be conservatives. And people who think that that's okay tend to be liberals, but it's just not as sensitive. So, it's just not as big a deal, but I don't think it's a good idea to pretend, you know. Um, and, and also since I think I'm not quite as pessimistic as, as, as Nick is, I think it's better just to do your best to write if you want to do public law to do it and write and write rigorous scholarship, then have a secret plan. Those sorts of secret plans never work anyways.
Rosenkranz: Yeah. I might just actually respond to something Eric said a bit earlier and this is actually a deep problem of this topic, how to disaggregate your view of a particular methodology from the merits. So this is easy to do in math or physics, it is to imagine that it is, it shouldn't matter the race of the person, that gender or the personal politics of the person shouldn't matter. Are they getting the math problem right. But in law it's a little harder to say that about politics for know, just as you say at some kind of baked in if it's baked into your political view or at all the piece with your political or ideological view is your view about formalism or your view about originalism. And it is hard to quite set that, ask people to set that aside. To give a kind of dramatic account of this,
Rosenkranz: my colleague Mike Seidman says, look, nobody complains that there are no astrologers in the astronomy department. And um, of course we shouldn't have any right. That's methodology that you know, makes no sense. And if you say to him, okay, but set that aside and can you just evaluate for us as we do when we get like an originalist candidate, Mike, can you set that aside and tell us, do you think this is good originalsm or bad originalism? An actually stronger originalist candidate than the others you've seen come through. Mike will go down this road with you. Mike says, this is a nonsensical question. It's like asking whether someone's a good astrologer or bad astrologer, it makes no sense. So he would deny that he can actually tell the difference between good and bad when done by an originalist. Now, what's the answer to somebody like that?
Rosenkranz: I think because law doesn't quite like solve law in the same way we can solve math. I think you have to say to Mike, okay, that is your view, but you must acknowledge that as a fringe view here in the United States. So many, many, perhaps most judges disagree with you. So even if you think it's crazy, if you surely would have someone on the faculty who can argue to a Scalia or a Thomas, and that at least ought to be a reference point.
Question Four: I was curious about the way that, um, you see this relating again, I guess more to the pedagogical side of things and I wonder, you talked especially about the intersection of other legal work and government service. So when Professor Rosenkranz mentioned that, you know, your government service had come in reportedly in a hiring decision, it also made me think of the Harold Koh situation at NYU pretty recently where there was a petition that he should not be teaching because of his work on drug policy in the Obama administration. Is this, are these the same things that come up in the ideological diversity context? Is this, is this treating this as a different issue about law professors' work as an academic and their work as a, as an analytic or as a lawyer? Um, how would you want us to think about how those different roles come together or maybe shouldn't come together?
Rosenkranz: That's an interesting question. You know, I guess I think it's all of a piece. Some, a lot of law professors at top schools do move in and out of government and it's just a bit of a marker of their... So if you've worked in a Republican administration then it's pretty clear which side of the aisle you were on, you know, even if you're doing private law or whatever, you can pull that. You know, consider the Harold Koh example, right? He worked in the Obama administration and he was like a good loyal Democrat forever. And still, NYU thinks that he's too far to the right to come there and teach. It must've been shocking for him, but these places are so far to left that even government service in the Obama administration has made people disqualified. It's kind of amazing.
Question Five: I'd be interested in both your perspectives on is the applicant pool for professor jobs, is it more titled to liberal applicants or to conservatives? What exactly is that breakdown between conservative and liberal applicants that are qualified?
Posner: I'm pretty sure that there, that there's a huge ratio of liberals to conservatives. This is a general, I mean, most law students are liberals. Maybe you guys know this? Most law school students are liberals, there's actually been empirical work on this done by Adam Chilton again, and some of his colleagues looking at people's contributions. You, you see, uh, that, uh, if you look at, if you graph people by political of view, it's not just law students are much more liberal, so are lawyers. Not surprisingly since they started off as law students. So there's going to be a, a large bias in the applicant pool. In the old days it was, I'm not sure having said that, it's sometimes hard to tell because people don't really want to say, well, I'm not so sure. At least when I think back at applicants, uh, it's, I think most of the time it's hard to tell.
Posner: Um, well it depends. So there are two types of applicants these days. One are the sort of Phd, JD people and their applications, they've got like a bunch of papers that they've written and, and, you know, you just can't, at least I can't tell. I guess increasingly we know that people who've clerked for a conservative Supreme Court justices are likely to be conservative and people who clerked for liberal Supreme Court justices are likely to be liberal because the Supreme Court justices themselves appoint ideologically compatible clerks. I guess I just don't, I mean, I don't know, I really don't think that much about it. Um, so, uh, but I do think the ratio is heavily skewed toward liberals.
Rosenkranz: I guess I would say I agree it is skewed towards liberals, but I think it is much less skewed then the academy. Uh, so law students, I mean maybe you know better than I, but I think law students are 75 or 80:20, does that sound right to you or I don't know, but not 95:5 or whatever 97:3. I don't think. So that's the look. So I think the student body is actually much more balanced than the law faculty and then consider Supreme Court clerks. So, uh, to report clerks, many people who were hoping for teaching jobs at elite law schools clerked at the Supreme Court and that was evenly balanced and those other half liberals and half conservatives.
Rosenkranz: Did the liberals tend to apply to academia more than the conservatives? Maybe slightly, but not by much I don't think. And to the extent that they did, I would say that actually also has a bit of a symptom of discrimination. I mean, I think a lot of, a lot of conservative Supreme Court clerks sensibly think, why do I need this? And uh, I was told, I've been told this many times. So I went on the teaching market. I had two articles in Harvard Law Review and I've clerked at the Supreme Court, and I got my job at Georgetown and I was told by conservative clerks for years after that I didn't, the folks who didn't have those things on their resume, I said, well, I know that I can do better than Georgetown. And so we're gonna why bother? And they went to private practice or whatever. Uh, so yeah, I think consumers are rightly kind of pessimistic about their prospects in academia and that may be a partial explanation for the skew in the applicant pool.
Posner: I should say also this issue came up in our last debate, or whatever it was. You know, schools don't give as much weight to Supreme Court clerkships as they used to. In fact, I don't give any weight to it myself, and I think most of my colleagues don't give any weight to it. It's almost entirely based now on the research you've, you've produced and most people now, which is relatively new, it will take a couple of years in a fellowship after law school writing things, um, and you know, basically look at what they've written and make our evaluations based on this. And, and I also do want to say in terms of recent hiring, I mean again, in the private law area, we made a lot of private law hires and it's kind of funny.
Posner: I have no idea what their political views are. They could be on the left or they could be on the right, but they, you know, they're writing about some, you know, rule of civil procedure and they're doing an empirical paper about something. And I just can't tell. In public law, though, as we were talking about before, you can tell, although even in that case there are a few people, I don't know what their views are. So I hope you don't take from Nick's comment, the lesson that if you're a conservative who wants to write about public law, you're not going to get a job, I just don't. I don't think that's true. Not at all.
Question Six: So going back a little bit to the effect this has on law students. Um, so I'm, I'm conservative, very libertarian leaning and I have been frequently frustrated at how often class discussions will cover issues that are very hotly contested in the real legal world, but the professors will, will portray them in a way that those are kind of foregone conclusions resolved in whatever they happen to agree with. And um, so I mean, I know that, that neither of you is in favor of any kind of government action, but I'm wondering what you would say to perhaps looking more closely at the curriculum, ensuring that, you know, whatever ... does teach a more balanced, more balanced class with various ideologies. Whether that would help at all...
Rosenkranz: I think that is the ideal. Ideally all of us are giving you both sides of each issue, but of course there are many professors who don't actually aspire to do that and there are other professors who though they maybe are aspiring to do it, are not succeeding, they just are not able to quite give you, you know, with a straight face, the other side of the question. And yeah, no, I hear that all the time. I mean, I think the liberal professors' version of the conservative argument is generally like a pale shadow of the real conservative and so to the extent that they do it at all, they usually are not giving you a kind of full throated version of it. I think that's a shame and I think there's anything that can be done about it quite in hiring.
Rosenkranz: I mean, it's hard to know that about a person before you hire them. Single best thing you can do on this is speak up in class. You should have enough to offer up that if there's nobody else is offering up the argument and you have to do it now. It's a, that'll be difficult for you, but it'll be great training for you and that's what you ought to do. I remember I was, um, when I was a 1L, what I was doing was I was on the Federalist Society bibliography finding the readings that were the other side of these issues, and then I was offering up the argument. I'm sure I wasn't doing it that well as a 1L, but absent me, there would've been, there would not have been that voice in the room at all. So ultimately I had to do it.
Posner: Yeah, you should challenge the professors. Tell them that they're dumb. They actually like that.
Question Seven: So Professor Strahilevitz mentioned last year that there are incentives for the institution to not discriminate against conservatives. So that's mostly been networking benefits for the students. They want their students to get clerkships. If you're a one in five students, this conservative and half of judges are better at placing that student in government gigs, et cetera. So why don't, why aren't those sorts of incentives to take care of your students to make the school look good, why isn't that enough? Is it maybe a decoupling of the scholarship side and the teaching side, is having them at the same hiring process part of this problem?
Rosenkranz: I'm not sure about the last part. I agree with, um, Professor Strahilevitz about that incentive, but I guess I would say it's very slight and so has very little effect. Um, yeah, on balance, I think professors, schools would prefer that they could help out their conservative students and help them get good clerkships in government jobs and Republican administrations. But barely. I don't think that actually a fight. I don't think it does a lot, I'm afraid.
Posner: Does a lot for what? For, for getting academic positions or?
Rosenkranz: Yeah. You know, Elena Kagan seems to make this a bit of a project at Harvard and she's successful got two conservative, so she's credited with caring about this and being really a good friend of the Federalist Society and really caring about intellectual diversity and um, you know, people, um, people that, that's a real important aspect of her legacy at Harvard. But the truth of the matter is 35 professors were hired at Harvard while she was there and there were two out of 35 and that's much better than Harvard had done in the past. And so she's rightly credited with that. We shouldn't overstate it 2 out of 35 was the success story at Harvard.
Posner: I want to say we love our conservative students. We really do. I don't, you know, I, I don't even think we think in such narrow instrumental terms, but, but it's very hard to, for law schools to help students become academics. Law schools are not like graduate schools, you come to a graduate school because you want to become a professor. You get training, you know, that there's a whole institutional structure for doing that. Law schools, you know, don't, don't do that, you know. In the last 20 years they've tried a little bit by, you know, introducing courses which sort of teach you how to write papers and that sort of thing. But uh, you know, they just don't do a good job, and one of the reasons is the vast majority of students don't want to become academics. You know, it's just, they want to become lawyers.
Posner: Um, and, and so, you know, the resource it doesn't, doesn't make a whole lot of sense to have a graduate school type system. Yale, in truth, by the way, has created a PhD program for law. I don't know whether that's going to work, but that's for specific students who select, you know, who will apply for it, not, not for their entire class. And these fellowships are like our Bigelow fellowships are kind of PhD program where the person comes in with the understanding that that person will do writing, and the faculty will help help the person out a little bit. And so forth, but um, it still remains the case that um, what students have to do mostly on their own is figure out good topics to write about, good papers. They can get feedback from professors, but there's just not that much we can do. So, you know, given how little we can do to help students become professors, uh, it'd be very hard to, you know, try to address issues of balance and so forth. I don't even know how we would do that.
Question Eight: So I just, I'm curious about what you both think about what the actual goal of intellectual diversity is because so if we're thinking that we want all these different ideas coming together, interacting with each other, making the weaker ones leaving and the stronger ones prevailing, then why do we not look at the skew and just think like that's the system working? That's the weaker ideas getting filtered down.
Rosenkranz: Yeah. So if I, so okay, I couldn't believe that except that it's it. Except that it's so wildly different from the ideas that are having an effect in the world. So that's what makes me think, that's not actually not actually the stronger ideas winning, it's just kind of odd bubble far to the left of the American political continuum. Ideas that are actually getting traction in the world are quite different. So, uh, I, you know, I would, if it were, the earth is round and that was the view in the academy and also the view on the earth, then I think it be a good sign. But here there's like a real dramatic schism between what happens inside of these buildings and what happens outside of them.
Posner: Yeah. You know, I think as Nick said before, it's not math so it's just very hard to know, right. If it were math, we would be able to test your hypothesis. But there are two possibilities. One is that there's discrimination and what is just the bedroom ideas are winning out, but there's this circularity because since there's no objective way to determine what the best ideas are, the ways determined is by the people who actually have those ideas. Right? So we're all evaluating ourselves and that's formally the way it works. You know, if a, if a school is thinking about hiring somebody from another school, they'll ask someone like me or Nick to write a letter and the faculty will read the letter if it's our field. So there is this weird circularity and the circularity can create bubbles, you know, just like in the market, but it can also be, but there's not really any alternative to the and uh, and people just need to be attentive, but I do think there is a kind of a market, a phenomenon which is when there are bubbles and they get really, really, really big.
Posner: Then the payoff from popping them gets really, really big, and there are very strong incentives for people to start criticizing the dominant view.
Question Nine: So, um, there's a recent book by Jon Shields and Joshua Dunn about like mental intellectual diversity not be looking at a broader academy, they focus on economics, political science, sociology, stuff like that. One of the things that they highlight is the possible disincentive for conservatives to pursue academic careers has resulted from this systemic attack on the academy from conservatives. Really going back to God and Man at Yale by William F Buckley could be one. We see this on the political stage all the time, Ben Carson talked about stripping federal funding to schools that indoctrinate liberal students. Even Senator Rubio in one debate talked about invading against philosophers and liberal arts education in general. Um, so is that, does that army make sense to you, should conservatives stop batting the academy?
Rosenkranz: Well, first of all, I'm glad that you raised that- book and it is important to note that this is an issue not just in law schools, but throughout the university. Actually those guys, and I'm Jonathan Haidt and I and a few others have created a website that focuses on this issue which is called Heterodox Academy and we're collecting scholarship about this.
Posner: Yeah, you guys haven't cited my article. You haven't put up my article on your website yet.
Rosenkranz: We'll have to do that. So it's an issue throughout the academy and it's certainly an issue in social sciences and whatnot. I don't know. I'm sure done. Should politicians stop bashing the academy? My guess, they should bash it to the extent that it's warranted. I mean, I think that their, most of those folks are right in their criticism of the academy as it is currently formulated. You know, if I'm, I think if these places started hiring some conservatives then conservatives wouldn't stop attacking them and that would be right too.
Posner: I think in some fields it's a lot worse than in law. Other fields it's probably a little bit better. Um, I don't, I, I think the criticism is healthy. I'm glad people criticize. I'm glad, but I don't entirely agree with everything they say, but I think it's very important that they're making this argument. But, you know, I think people should criticize these things really. Um, there, there is an interesting phenomenon which is, you know, the, the think tank phenomenon where in a way a lot of conservative stuff kind of opted out of the universities and gone into these think tanks which are funded by conservatives as well. The universities are funded by, to a large extent, liberals. So I think this kind of ideological polarization institutionally is really bad, and it'd be better if everybody in universities and think tanks were more diverse as well. But, um, but yeah, if this is just a pro, you know, there's a general polarization going on in our society. It's, it's been going on for a long time in the universities, but I think we should fight it rather than give into them.
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