Shrug off the “right man’s burden”


On the same day that lawyers debated “diversity” and affirmative action before the high court, writers argued “ideological diversity” in the court of public opinion. But for those who trumpet the latter as evidence of unfair treatment, it is their argument — not their class — that is suspect.

On April 1, the Wall Street Journal opinion pages featured an essay by Northwestern Law’s John McGinnis (HLS ’83) and Columbia law student Matthew Schwartz, describing their empirical research indicating that the legal academy is staggeringly liberal. The essay, highlighted by the national Federalist Society as well as David Horowitz’s right-wing, didn’t go so far as to decry faculty partisanship as harmful to conservative students. But to many, the study is evidence that the legal academy’s “ideological unilateralism” threatens harm to the education of conservative law students.

Speaking as a conservative law student, I vigorously disagree: To be a discrete and insular law school minority is an enviable position.

“Minority” status has long served as a beacon for reactionary protection in American culture, and not always for inappropriate reasons. Indeed, our nation has witnessed deplorable acts of oppression of minority groups. In response, our Constitution offers protections, and the courts and Congress offer still more. But minority status per se is not a position of weakness — certainly not at HLS.

The first obvious advantage of the conservative law student minority is absence of the “collective action problem.” When conservatives can’t rely on a systematic tendency toward the promotion of their views, they are spurred into action — inviting speakers, writing and the like. The core perpetrators of law school conservatism can rely on no one but themselves, and their reliance has been fruitful.

Just as important, the ideological minority is forced into a beneficial position in the classroom: that of near-constant dissent and skepticism. No conservative enters law school blind to the reality of the current left-center establishment. While students of all political persuasions accept their introductory lessons with varying degrees of skepticism, conservatives have reason to be particularly cautious: Long before any of us learn any law, we are introduced to “public policy justification” as a legitimate cause for divergence from strict adherence to the written laws. We are handed casebooks whose materials are edited to varying degrees and for various purposes. We learn the law from faces we recognize from liberal political causes and public advocacy. For students whose initial impression of the role of law collides violently with the last fifty years’ doctrinal ebb and flow, we are forced to look all the more closely at the underlying forces and interests of the lawmakers — either to justify our initial impulses, or to discover where we erred. To conservatives willing to forge ahead, the classroom provides not a threat of silence or hours of attempted Brennanization so much as it does the opportunity to test one’s own theories and, essentially, “read from the other team’s playbook.”

The majority — left-center law students — reap far fewer of these benefits. Instead of consistently confronting a large body of opposition to their view of the nature and role of law, they can elect to reside in an echo chamber of liberal conventional wisdom.

Of course, minority status in the legal academy has its major drawbacks, first among them the dearth of conservative legal mentors. But the largest threat to the conservative law student seems to be internal, not external: the appeal of resorting to the politics of “victimhood” so often utilized by political interest groups.

These political tactics were highlighted by the recent RECORD editorial criticizing conservative students who claim to be “silenced” in the classroom (“Conservatives should shut up about silencing,” 3/13/2003). I still agree with the core of the editorial’s argument: conservative students, particularly in the Federalist Society, are one of the best-organized, most intellectually eager and persistent student populations, and this is the outgrowth of their minority status. In a short time the Federalist Society and its peers have launched such effective attacks on liberal institutions — both political and judicial — that they have spurred the growth of an urgent countermovement. Heralded by such prominent professors as HLS’ Tribe and Chicago’s Sunstein, the left’s urgency is prima facie evidence of the power of its nemeses. Any Federalist Society member who claims classroom vulnerability is levying a suspicious accusation in light of the last twenty years.

Claims of victimhood may play in some realms of political debate, but they offer minimal benefit to the legal academy’s conservative minority. Instead, by drawing attention to classroom politicking, they decrease the amount of classroom time and focus dedicated to legal debate. The legal debate is one that legal conservatives could very well win, as the ongoing experience of the national Federalist Society attests. The political debate — the victim contest — is a much less promising endeavor, indeed.