Intellectual Diversity in the Legal Academy

Article excerpt

Elite law faculties are overwhelmingly liberal. Jim Lindgren has proven the point empirically. (1) I will just add my impressions from Georgetown Law School to reinforce the point. We are a faculty of 120, (2) and, to my knowledge, the number of professors who are openly conservative, or libertarian, or Republican or, in any sense, to the right of the American center, is three--three out of 120. There are more conservatives on the nine-member United States Supreme Court than there are on this 120-member faculty. Moreover, the ideological median of the other 117 seems to lie not just left of center, but closer to the left edge of the Democratic Party. (3) Many are further left than that.

But at least there are three. And the good news is that this number has tripled in the last decade. The bad news, though, is that, at Georgetown, the consensus seems to be that three is plenty--and perhaps even one or two too many.

These numbers are stark, but they are not unusual; this ratio actually seems fairly typical of most elite law schools. This lopsidedness would be a shame in any academic department. (4) But it is a particularly ironic sort of shame at a law school. After all, it is a fundamental axiom of American law that the best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet, at most of these schools, on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all.

One result, unfortunately, is a certain lack of rigor. To be blunt, a kind of intellectual laziness can set in when everyone agrees. Faculty workshops fail to challenge basic premises. Scholarship becomes unreflective and imprecise.

Worse yet, this intellectual homogeneity impairs analysis of law in progress--law as it unfolds out in the world. Analyzing and predicting actual American law would seem to be an important aspect of the job. After all, the country would like to be able to turn to these elite faculties for wisdom and insight about contemporary legal controversies. But because elite American faculties are so far to the left of the American judiciary, these faculties can be startlingly poor at analyzing the actual practice of American law.

Three recent examples illustrate this point. First, consider Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (5) At the time the case was filed, many universities were restricting military recruiters' access to campus, to protest the military's policy on homosexuality. (6) Congress responded with the Solomon Amendment, which withheld certain federal funds from colleges and universities that did so. (7) In Rumsfeld, many top law schools and law faculties argued that the Solomon Amendment was unconstitutional. (8) When Georgetown's faculty decided to join them, (9) I was new at the law school and hesitant to pick a fight. Still, I did ask to meet with one of the champions of this project at Georgetown. Over coffee, I told her that I thought we were making a mistake.

She quickly assured me that she understood completely: Obviously, I must have very strong and religiously motivated objections to homosexuality. I said no, actually, I do not; and in fact I am in favor of gays in the military as a matter of policy. I explained to her that what I object to is an incoherent legal argument. The argument against the Solomon Amendment made no sense, I said, and it was embarrassing for the Georgetown faculty to endorse it.

She had not heard that before; apparently, no one at Georgetown had raised any doubts about the legal merits of the position. Indeed, the notion that our policy preference might be inconsistent with constitutional law seemed unfathomable to her. And so, she must have found it equally unfathomable when the Supreme Court rejected the academy's challenge and upheld the Solomon Amendment--eight to zero. …