This letter speaks for itself

[Volokh, Eugene]

        Mark's points sound intriguing, but I'm not completely sure I fully
understand them.  To begin with, I would assume that there are indeed more
liberals and moderates than conservatives in the eligible pool and among
clerks generally, simply because the former group -- by its inclusion of all
the moderates -- covers a wider chunk of the political spectrum.  Is there a
deeper point that I'm missing?  Also, if we were to try to test this, how
would we do it, given the absence of any publicly available information that
breaks down either the top law school graduates or the top incoming students
by politics?

        Furthermore, I'm not exactly sure what "examination" Mark is
alluding to in point b.  Is the claim that law professors or undergraduate
professors are unfairly grading down or giving unfairly low recommendations
to black and Hispanic students?  That they are unfairly grading down or
giving unfairly low recommendations to liberals, conservatives, or
libertarians?  I really am a bit uncertain about what the claim exactly is
here.

        Eugene

> -----Original Message-----
> From: Mark Tushnet [SMTP:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Monday, April 23, 2001 10:09 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: This letter speaks for itself
>
> Eugene Volokh mentions, in connection with representativeness,
> "underrepresentation .  .  .  compared to their share of the eligible
> pool of top law school graduates."  So, consider the possibilities (a)
> that liberals and conservatives are represented in proportion to their
> share of the eligible pool, but distributed differentially among the
> justices (in which case Eugene's enumeration suggests that there are
> more eligible liberals and moderates than conservatives), or (as I
> suggested earlier) (b) that membership in the eligible pool is
> determined (by faculty members, among others) in ways that deserve some
> examination. << File: Card for Mark Tushnet >>
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