Legal Commentary

Kagan and Diversity Hiring

By Dale Carpenter

I admire the fact that Elena Kagan made it a point to hire prominent libertarians and conservatives while she was dean at Harvard.

It?s difficult to get many American law schools, dominated by a broadly and comfortably liberal consensus across almost every field, to recognize the importance of ideological diversity among faculty. That?s true for hiring both libertarians and conservatives, but especially the latter. It?s not that law schools flatly refuse to hire them. Most academics have a richer regard for intellectual freedom and discussion than that. They do not see themselves as intolerant of dissenting views.

Instead, the process of ideological self-replication in hiring is more insidious. Whatever our views, we are more likely to admire work that broadly agrees with our own than to admire work that profoundly disagrees with our own. So we say, ?I?d welcome someone who disagrees with me (on conclusions, methodology, etc.), but this person does poor scholarship, is not ?collegial,? etc. Next.? 

Overcoming this intellectual narcissism requires a conscious effort (a) to recognize that it exists, (b) to say so openly, and (c) to make real efforts to counter-balance it in generating the pool of candidates and in reviewing scholarship. It goes without saying that qualitative standards should not be lowered to hire conservatives or anyone else. It?s similar to the way in which overcoming racism and sexism in hiring requires a certain self-consciousness and self-criticism. (And no, I?m not saying that conservatives and libertarians are oppressed.)

While dean at Harvard, Kagan not only hired conservative scholars, but hired openly, prominently, and controversially conservative scholars. These included Adrian Vermuele and Jack Goldsmith from Chicago, and John Manning from Columbia. These were no squishes getting strange new respect from liberals.  They defended heresies about international law, executive power, constitutional and statutory interpretation, and so on. Given Harvard?s hiring track record before she took charge, bringing in such people can?t have been universally appreciated. It took leadership.

Of course, as David has pointed out, scholars of the quality Harvard hired were not obscure. They were established scholars with long and distinguished publication profiles. But much as I wish it were, Harvard isn?t in the business of lifting unknowns, liberal or conservative or other,  from obscurity at Podunk U. And there have been excellent libertarian and conservative scholars not hired by law schools where they should easily have placed. Kagan broke and discredited this practice at the country?s top-ranked law school. One can hear the question now being asked around the country: If Harvard can hire conservatives, why can?t we?

How much does this matter for Kagan?s nomination?  Some, but it?s hardly dispositive. At one level, Kagan was just being a smart dean, thinking of the long-term interests of the school. But it?s not like Harvard was facing a crisis because it lacked right-wingers. Obviously, commitment to ideological diversity would not be adequate compensation for a candidate who?s otherwise unqualified by inexperience or temperament, or one whose judicial philosophy is unsuitable for the Supreme Court.

But Kagan?s decanal record does suggest an openness to opposing views, a seriousness about ideas, and perhaps a willingness to be persuaded, that ought to provide some comfort to conservatives and libertarians facing the prospect of Justice Kagan, ca. 2040.

Full post as published by The Volokh Conspiracy on May 12, 2010 (boomark / email).