Jonathan H. Adler (Case Western), Law School Faculties Need More Intellectual Diversity:
There is something about judicial nominations that brings out the worst in U.S. Senators. Judging from the academic debate over the nomination of Judge Neil Gorsuch to the Supreme Court, it seems to bring out the worst in legal academics too.
Judge Gorsuch is an avowed proponent of “originalism,” the idea that the original public meaning of the Constitution’s text should control the outcome in constitutional cases. To some this approach to constitutional interpretation may seem like common sense, but it is hardly a universal view. Although many judges and justices ascribe to an originalist judicial philosophy, this approach is not popular in the academy.
What is notable about the academic debate over originalism is not that such a debate exists, but that so much of the debate is misinformed — misinformed about what originalism does or does not entail and why it might be endorsed. In the weeks leading up to the vote on Neil Gorsuch’s nomination, numerous legal academics rose to attack poor caricatures of originalism, and their misinformed attacks were often repeated in the Senate.
Some of the straw men offered by otherwise-notable academics were so flimsy, it was as if they had never encountered a real originalist in the flesh, let alone spent time trying to understand the point of view they were critiquing. Again, the problem was not that they were attacking originalism, so much as the critics did not even appear to comprehend the target they were shooting at.
There are many possible reasons for the empty debate over originalism. One possibility is that some of these critics lack familiarity with originalism, along with other points of view that are unpopular in the academy.
The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarship all find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law).
Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.
As a consequence, at many law schools, students rarely encounter the forceful articulation of right-of-center views. Thus it should be no surprise that many who study in American law schools fail to understand such views. Reading a book or some court opinions can only do so much. ...
The lack of ideological diversity on law school faculties is fairly clear. The causes of the ideological imbalance, however, are the subject of some dispute, likely because a range of factors are in play. ...
Law schools, as much as any other part of the academy, rely upon a robust exchange of views to further their pedagogical mission. Insofar as law school faculties fail to reflect and represent the range of views found within the legal profession — let alone society at large — it is difficult for law schools to fulfill their pedagogical aims. If law schools (and the AALS) were truer to their mission, they would do more to understand and address the causes and consequences of ideological uniformity on law school faculties.
National Review, Law Schools Need More Diversity — Intellectual Diversity