Conservatives’ “Advantages” in Getting Law Professor Academic Jobs

Brian Leiter:

Another Advantage Aspiring Law Teachers on the Right Have Over Others

It’s programs like this, which employ ideological criteria for eligibility. The American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions; programs like this, which provide special opportunities to those who would push it even further to the right, really do make it absurd to then turn around and complain that “conservatives” are at any kind of disadvantage in securing academic jobs.

Leiter is linking to the Federalist Society Olin-Searle-Smith fellowships, which are awarded to up to three students a year.

(1) Leiter seems to think of this as “another advantage” because “the American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions.” This is true, but this still makes the American legal academy far to the left to anyone who is actually “on the right.” If Leiter means that it might be easier for a conservative to get a job as a law professor than as a sociology professor, I’m with him on that. If he’s arguing that it’s easier for a conservative to get a job as a law professor than for a liberal to get the same job, I want some of what he is smoking.

(2) While I’m a big fan of the Olin-Searle-Smith fellowships, I don’t understand why Leiter talks about programs “like this.” It is the only such post-law school fellowship program. Law schools hire somewhere between 150 and 350 new law professors per year, depending on how the economy is doing. The Olin etc program gives candidates “on the right” a leg up on as many as three of those positions. (And I should add that the Federalist Society sometimes awards these fellowships to liberals who express interest in originalism or other methodologies favored by conservatives). If we assumed that all other things were equal, this would still be a pretty minor advantage. If we realistically assume that not everything is equal, these fellowship hardly make up for the disadvantages in being “on the right” when applying for an academic job, especially if one specializes in a public law field dominated by ideological liberals, such as constitutional or international law. And meanwhile, while I haven’t done a census, in my experience on GMU’s hiring committee there seem to be plenty of law school “centers” with left-wing ideological orientations, such as NYU’s Brennan Center, that produce in total far more than three annual legal academic candidates through their fellowship programs.

All that said, as I’ve explained in detail before, legal academia does have a lot to offer to conservatives and libertarians, and I would be the last to discourage someone “on the right” from trying it–though I’m not sure a social conservative who has written even the most subtle or brilliant possible defense of Bowers v. Hardwick, or, for that matter, even a cunning and scholarly natural law defense of limiting marriage to heterosexual couples, could expect to get a job outside of one of the schools sponsored by conservative Christian institutions. And the idea that on average, candidates “on the right” have an advantage in the academy, except relative to the even greater burdens they face in other academic disciplines, is ludicrous.

UPDATE: A law professor who wishes to remain anonymous emails:

Just a slight amendment to your comment that “these fellowship hardly make up for the disadvantages in being ‘on the right’ when applying for an academic job[.]” Not only don’t they make up for it, but in many cases, fellowships like this can disqualify an applicant from consideration outright. When I was on the market just a couple of years ago, I was encouraged to get rid of any easily identifying CV marker of conservative leanings. I could not do so entirely, as at least some of my scholarship might give me away; But at least I had the protection that people actually had to read it to realize that.

Anybody applying for the Fed Soc fellowship should know that while it might help you in all of the ways that other strong and high quality fellowships can, it also can be and often is seen as a black mark by many people in the legal professoriate.

Of course, if it’s already obvious that you are “on the right,” procuring an Olin has no disadvantages. But the emailer has a point; a candidate without obvious conservative or libertarian c.v. markers would have to think long and hard about his alternatives before accepting this fellowship.

FURTHER UPDATE: Leiter adds an addendum, which includes the following:

Once Federalist academics are in teaching, they benefit from a continuous stream of invitations to speak at Federalist Society events at law schools across the country, which gives them an exposure not available to young legal academics not on the right.

This is true, but largely irrelevant. I’ve spoken at dozens of Federalist Society events over the years. I’d guess that the median number of professors who attend these events, other than as a debater/commenter, is zero. The average is likely less than one. [I don’t think this is a reflection of hostility to me or the Federalist Society; professors at most law schools are kept quite busy with faculty workshops, candidate job talks, and other faculty events.] So while I love doing Fed-Soc events, I can’t agree that it significantly, or even insignificantly, boosts one’s academic career. It may increase one’s overall influence in the world by exposing students’ to one’s ideas, but that’s a different matter entirely.

And of course, the reason the Federalist Society sponsors these events to begin with is that there are so few right-of-center voices on most law school faculties.

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