Legal Commentary

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.