OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Close This Box!

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.