Paul L. Caron

Thursday, February 10, 2022

Hamburger & Volokh Debate: Are Law School Deans, Faculty, And Students Who Stifle Opposing Views Unfit Ever To Be Judges?

Wall Street Journal op-ed:  Intolerant Lawyers Shouldn’t Be Judges, by Philip Hamburger (Columbia):

Law school deans, faculty and students who stifle opposing views are unfit ever to sit on the bench.

What should be done about law-school deans and others in legal institutions who censor, cancel, blacklist, refuse to hire, fire, “investigate” and otherwise threaten others for their opinions? A partial answer lies in reminding them that their misconduct may disqualify them from ever sitting on the bench. At one point or another, most lawyers dream about being a judge. Lawyers and aspiring lawyers should remember that their conduct today may be the measure of their disqualification tomorrow.

The question came up last week at Georgetown Law School, when the dean, William Treanor, put a newly hired administrator and senior lecturer, Ilya Shapiro, on leave pending an investigation—merely because of a tweet about the pending Supreme Court nomination. Leaving aside that nonacademic opinion is no reason for punishing an academic, Mr. Treanor’s reaction is one more case of harassing dissenters.

The problem is now pervasive in law schools. On account of mere dissent, deans investigate faculty for their views, give them meager salary increases, bar them from teaching some subjects, and even threaten to fire them—as at Georgetown. It’s not only deans. Faculties or their appointment committees regularly refuse to hire people with the wrong views. Just as bad, student law-review editors exclude dissenting students from their boards and even threaten to fire editors whom they discover to have the wrong views, whether on pronouns or matters of law. Student editors also refuse to publish perspectives they dislike—at some journals, they have blocked conservative perspectives, originalist arguments, and “anti-administrative” (aka constitutional) positions. ...

What’s to be done? In the legal world, the first step is to remember that people who are intolerant aren’t fit to serve as judges or in other positions of legal authority.

If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, can he be trusted as a judge to listen with an open mind to conflicting legal positions? If someone can’t tolerate both sides, how can he be trusted to do justice impartially?

Eugene Volokh (UCLA), It's Blacklisting All the Way Down:

I appreciate Prof. Hamburger's concern about the disease, but I'm not on board with the cure.

Let's step back and try to get a sense of perspective about all this: A 23-year-old law review editor does something "intolerant," and this makes him unfit, perhaps thirty years later, to serve on the bench? Really? ...

To be sure, implementing such a categorical rule—if it could indeed be consistently implemented—might help deter some bad behavior (as well as some unobjectionable behavior). But so what? Speeding is bad behavior, but I wouldn't endorse disqualifying from a judgeship anyone who had ever gotten speeding tickets while in law school, even if I thought that it might add an extra dollop of deterrent. ...

[I]t seems to me a mistake to create overbroad, perpetual, and categorical disqualifying rules—for judicial appointments or for most other things—especially when those rules turn on behavior that is generally perfectly lawful even if, in our view, insufficiently tolerant. We need fewer blacklist threats these days, I think, rather than more.

UPDATE: Prof. Hamburger graciously passed along this response, which I'm delighted to post:

My thanks to Eugene for his thoughtful response to my Wall Street Journal piece arguing that intolerance is disqualifying for judicial candidates. As at other times when I disagree with Eugene, I am half persuaded he is right. Certainly, he has a good point that the disgrace of blacklisting should not induce counter blacklisting. But that's not what I was proposing. ...

Eugene surely is making a very important point where he worries about categorical barriers to judicial office. People do change. Most don't change sufficiently, but some do. I therefore heartily agree that there shouldn't be a categorical rule against the intolerant and welcome that as a somewhat friendly amendment. ...

Ultimately, the point is not is not about my views or Eugene's, but about the role of judges. To be a judge and to avoid denying the due process of law, an individual sitting on the bench must be willing to hear both sides in a case. In listening, she must keep an open mind. And ultimately she must be determined to reach a judgment devoid of prejudice—a judgment that rises above her precommitments.

So, when a dean, professor, student, or partner acts with manifest intolerance, it is difficult to avoid having doubts about her qualification to be a judge. The depth of those doubts will depend on the circumstances, and it will not always be clear where such doubts should lead. But such doubts are inevitable and constitutionally desirable. America cannot afford intolerant judges.

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