This letter speaks for itself

Volokh, Eugene VOLOKH at MAIL.LAW.UCLA.EDU
Mon Apr 23 10:58:10 PDT 2001


        Of course, if one defines, say, Clinton as a conservative, then
you'd get one picture; if one defines (as some of my conservative friends
do) Nixon as a liberal -- recall that he imposed price controls, supported
race preferences, and so on -- then you'd get another.  I prefer to define
liberal or leftist as someone who's left of the center of U.S. politics, and
thus probably votes Democrat or to the left of that, and to define
conservative as someone who's right of the center of U.S. politics, and thus
probably votes Republican or to the right of that.  (Libertarians are a
tougher question, but these days most libertarians vote either Libertarian
or Republican.)  Obviously an imperfect definition, but better than having
the terms depend more heavily on where the speaker is coming from.

        As to the Justices' "failure" to "hire people of color," a couple of
thoughts:  (1)  If we're talking about underrepresentation of racial
minorities compared to their share of the population, there seems to me to
be no "failure" here -- in my view, the goal of racial proportionalism among
clerks is an unsound and even pernicious one, which would among other things
require caps on Jewish clerks, who are hired in wild disproportion to their
numbers in the population, and who therefore naturally throw off the racial
numbers (since the overwhelming majority of Jews are white).

        (2)  If we're talking about underrepresentation of racial minorities
compared to their share of the eligible pool of top law school graduates
(which some might argue is evidence of discrimination by the Justices), I
have no reason to think that such a "failure" exists:  Though law schools
provide no direct statistics on the race of their top graduates, looking at
the best (albeit imperfect) proxy we have -- LSDAS data on the LSAT scores
and GPA of entering law school students by race -- shows no evidence that
the Justices are in any way discriminating against blacks and Hispanics.  I
wrote about this in a Wall Street Journal op-ed several years ago; it's up
at http://www.law.ucla.edu/faculty/volokh/clerks.htm

        Note also that under any definition, the question isn't about
"people of color" generally, but as to blacks and Hispanics; I believe
Asians have in recent years been hired in greater numbers than their share
of the population, and in roughly comparable numbers to our best guess of
their share of the top law school graduates.

        Eugene

> -----Original Message-----
> From: Lynne Henderson [SMTP:hendersl at IX.NETCOM.COM]
> Sent: Monday, April 23, 2001 9:01 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: This letter speaks for itself
>
> I am a bit concerned about how "liberal" and "conservative" are being
> defined here.  I suppose if a clerk is a memeber of the Federalist
> society,
> he (or she) could be labeled "conservative"--although a certain kind of
> conservative.  Is a libertarian a "conservative" or a "liberal?"  what
> does
> "liberal" even mean anymore, given that it has become a term of
> denunciation
> in many quarters?  The changes in the Democratic party over the past 10
> years indicate what was once liberal is now what I would have once thought
> was conservative, and the appropriation of liberal rhetoric by republicans
> has turned what was once "liberal" into "conservative".
> Also, I know there have been concerns voiced  about failures of justices
> to
> hire people of color, and the pattern remains as far as I know.  I am not
> sure about hiring of white women as S Ct clerks.
>
>
> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Sanford Levinson
> Sent: Monday, April 23, 2001 9:00 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: This letter speaks for itself
>
>
> Surely one should not forget that Richard Posner and Michael McConnell
> both
> clerked for Justice Brennan.  My impression--and I would be genuinely
> happy
> to be corrected on this--is that Justice Thomas has hired *only* certified
> conservatives and that Scalia is much the same.  (Larry Lessig is scarcely
> a conservative now, but I have no idea how he was perceived at the time he
> was hired as a clerk.  But, then, perhaps Posner and McConnell were
> thought
> to be Brennanite liberals when they were hired!)
>
> Let me ask the following question, though:  What if a judge says, "I
> prefer
> to hire conservatives (or liberals) because I want to minimize the
> possibility that my clerks will have serious qualms (or even refuse) with
> regard to writing opinions for me.  One response, of course, is to say
> that
> the clerk-candidate is a disciplined professional who can write persuasive
> opinions on either side.  But why, exactly, is that so admirable.  If
> someone, for example, believes that the death penalty, either per se or as
> administered, is both immoral and unconstitutional, why should it count in
> his/her favor that he/she would gladly clerk for Thomas?  Or that a
> committed Federalist would sign on for Breyer?  Does that bespeak
> professionalism or simply careerist opportunism?
>
> sandy
>
> At 11:37 AM 04/23/2001 -0400, you wrote:
> >This is all anecdotal, but:  among the clerks for Thurgood Marshall:
> >Ralph Winter and Douglas Ginsburg (Reagan appointees to the courts of
> >appeals); Brennan, under political pressure, revoked his clerkship offer
> >to Michael Tigar.  And, of course, one would really want to know the
> >liberal/conservative proportions among law students (or law students
> >with the relevant credentials -- which, I suppose, creates a problem if
> >liberal faculty members give high grades to people like them and low
> >ones to conservatives) at the time each judge/justice was doing the
> >hiring.
> >
> >Attachment Converted: "h:\tushnet10.vcf"
> >
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