Profile of Yale Law Dean Harold Koh:

The Yale Daily News has what strikes me as a balanced profile of Koh [the first of a two-parter], who is by all accounts a nice guy, a good fundraiser, and beloved by his students, but is also a highly partisan liberal Democrat under whose tenure as dean conservative and libertarian students have felt increasingly uncomfortable, and conservative and libertarian alumni have, at least in some cases (as noted in the Daily News piece) grown increasingly alienated.

The article paraphrases a post I wrote for the VC mentioning that, by contrast to when I was a student, Harvard Law School under Dean Kagan now has a reputation as a far friendlier place than Yale for Federalist Society types, and that Harvard is now much more open-minded than Yale about hiring non-liberals. While I don't object to the paraphrase, it would have been better form if the Daily News writer had made it clear that he never actually spoke to me, but just cribbed some comments from the VC.

Meanwhile, Professor Bainbridge piles on. Noting that Koh is on everyone's short list for the Supreme Court in a Democratic administration, Bainbridges predicts that "Koh's appointment to the SCOTUS would be an unmitigated disaster."

The Rabbit:
I suspect Harold Koh would be an extremely controversial Supreme Court nominee. A President vwould need a heavily Democratic Senate -- and a lot of political capital to spare -- to have a decent chance of nominating him and then pushing him through. Much smarter to nominate someone like Willy Fletcher, who would be a very reliable liberal vote without all that controversy.
4.4.2007 11:26pm
John Armstrong (mail) (www):
Well of course it's a favorable profile. The Yalie Daily is written by Yale undergrads, and as any one of them will tell you there's nothing at Yale but sheer, unmitigated perfection.

Except maybe that calculus lecturer who fails you for something silly like not passing the exams. Or having to pay extra for your chosen religiously-mandated diet.
4.4.2007 11:58pm
Harold Koh's America is an America in which we would all speak Esperanto. Our controversial cartoonists would be in hiding. Our women would dress like ninjas, be subject to genital mutilation and treated like property. Our economic sector would collapse under the weight of a mandatory 35-hour work week, and our prison doors would be flung wide open to allow murderers to roam the streets. Men in speedos would be commonplace at our beaches, and our political dissidents would be run over by tanks on the National Mall. Harold Koh would turn the clock forward to an anarchic, internationalist dystopia. Harold Koh must not be confirmed to the Supreme Court.

Seriously, Fletcher, Sotomayor, Tatel, Garland, Wood, Kagan... who would choose Koh over these people?
4.5.2007 12:12am
A friend of mine and I often gloat that due to Yale's imbalance under Koh, Yale will soon become increasingly irrelevant (we go to HLS). Our theory is that, at least in public law, professors gain recognition in large part by rationalizing what the court does. With the court moving steadily to the right, Harvard stands in much better stead with its recent hire of Levinson, Vermeule, Jack Goldsmith, and John Manning. What young scholars does Yale have doing relevant public law? Perhaps only Heather Gerken and Christine Jolls (recent defectors from HLS). I can't really think of anyone else and its not because I only know HLS professors.
4.5.2007 1:58am
Bemac (mail):
I'm not sure I understand Koh's position on don't ask-don't tell. He has barred ROTC, but he joined the administration that enacted DADT into law. ROTC reflects but does not make such policy. President Clinton, on the other hand, exercised his policy authority to make DADT the law of the land.

Why did Koh join the administration responsible for a law he finds uniquely reprehensible?
4.5.2007 8:41am
Justin (mail):
I like the little toss-in, unsupported, that Yale is "not open" about hiring "non-Liberals." All the article states is that it is not clear that Yale has an affirmative action policy towards conservatives. Given the amount of intelligent conservatives who attend the top law schools (they're clearly a minority even at Chicago), and given the the amount of those who seem to want to go into academia, its clear that only an affirmative action policy would create the kind of balance that Bernstein sees necessary to make some place "friendly" for conservatives - an affirmative action policy for conservatives, mind you, but not for minorities (sidenote: I'm against AA for both in most instances, though support more broad "socioeconomic" affirmative action).
4.5.2007 9:34am
DavidBernstein (mail):
Allow me to quote an anonymous, liberal professor at Yale (who disagrees with current policy): "No one to the right of Bruce Ackerman can get hired to teach public law at Yale Law School." In fairness to Koh, Yale hired Jonathan Macey under his watch, one more Federalist than was hired in Kronman's entire two terms as dean.
4.5.2007 10:07am
Peter Schuck does not qualify as a "liberal professor."
4.5.2007 10:43am
davidbernstein (mail):
Not Schuck. That leaves 60 or so more guesses.
4.5.2007 10:44am
Seamus (mail):
Isn't it about time to retire "unmitigated disaster" as a cliche that's well past its freshness date? Or maybe Prof. Bainbridge could tell us what he would characterize as a "mitigated disaster"?
4.5.2007 11:30am
A mitigated disaster:
would be the appointment of Akhil Amar.
4.5.2007 11:45am
DCL (mail):
Amar would be a fantastic choice. There was a recent op-ed in Legal Times advocating his nomination for the next vacancy.

But I think it's hilarious that conservatives whine about "not being comfortable" at Yale Law School, as if the purpose of law school were to be comfortable and as if their feelings on the matter were somehow more important than the far more serious issues of racial and gender inclusion that they continue to deny and denigrate. Woe is the poor conservative!
4.5.2007 11:51am
Justin (mail):

So you're quoting an anonymous professor who made an unsupported factual assertion that you then immediately admit to be false?

Macey teaches "Law, Econimics, and Organization"
Amar teaches "Constitutional Law I"
Stuart Banner (Kozinski, O'Connor) teaches "Property Rights and Indigenous People"
Schuck teaches "Groups, Diverty, &Law" and "Immigration Law &Policy: Selected Issues"
Priest teaches "Antitrust" "Capitalism," and "Regulation of Industry."

What's your definition of public law? Is it law and basketweaving cases? How many conservatives do you know really want to teach that kind of law? If you throw in Con Law, Admin Law, Legislation, and Federal Courts, exactly how many openings do you think Yale Law gets in those fields on a regular basis?
4.5.2007 11:52am
davidbernstein (mail):
Amar is not conservative (and in fact, is a moderately liberal Democrat), and in any event was hired in the 80s (note that my post was in the present tense ("can get hired" not "has ever been hired," though the latter may be pretty close to the truth, too). Stuart Banner is not conservative (clerkships notwithstanding) and is in any event a visiting professor. Schuck is moderate, used to be liberal, and was hired many years ago (he was a full professor when I started law school in 1988). Priest was hired to be a Torts professor, in the early 80s, I'm not sure how that advances your critique. Macey is a corporate law scholar, who teaches Accounting, Finance, and Law, Banking Law and Regulation, Business Organizations, Corporate Governance: Seminar, Financial Institutions: Legal and Economic Perspective, Law, Economics, and Organization, and Legal Practicum. I haven't seen the syllabus for LE&O, but I doubt it reasonably counts as public law. There's not just Con Law, Admin Law, Legislation, and Federal Courts, but also Civil Rights, International Law, and more. And of course, the quoted professor is anonymous to you, not to me.

BTW, Justin, I'm growing weary of comments of yours that criticize me for something I didn't say as in this one (implying that I wrote that no one conservative ever teaches a public law class at Yale) and the one on Finkelstein (posting from the false premise that I wrote that I think Finkelstein should not get tenure for ideological reasons). You've been warned.
4.5.2007 12:14pm
Justin (mail):
Just out of curiousity, what were you quoting your anonymous law professor for, if not to adopt the statement as your own?

Are you also claiming that Amar is to the left of Bruce Ackerman? I've never seen Amar's name on a Democratic short list, even ones that are somewhat conservative pipe dreams of a Democratic short list. If you're making a different claim, please let me know exactly what the claim is.

And now I'm not even sure of your claim at all. Is it that someone needs to be hired, under Koh, and directly fed into the position of teaching public law, as their primary reason for being, with public law defined as Constitutional Law, Administrative Law, Legislation, and Law &Basketweaving?

If so, then

a) Banner applies

b) There's probably almost no qualified conservative law professor who wants to teach primarily law &basketweaving (I assume the basketweaving of economics is excluded as not sufficiently public, and I am not aware of any professor other than Priest who teaches that at Yale)

c) The remaining classes - Legislation, Federal Courts, and Constitutional Law - how many people have been hired primarily to teach those classes under Koh? I honestly don't know the answer (or who was chosen), but I'd be surprised if there was any number large enough from which to draw any statistical conclusions.
4.5.2007 12:44pm
Justin (mail):
BTW, "Law and Basketweaving" was one of my former (conservative) professor's reference to the interdisciplinary Law &______ classes that are all the rage at the top law schools these days.
4.5.2007 12:46pm
Duffy Pratt (mail):
Has Amar taken the bar yet?

And someone should ask Jack Goldsmith about Koh. He was a bit of a Koh protege at YLS.
4.5.2007 12:52pm
a) DB's claim was that Stuart Banner isn't conservative and that he's a visiting prof. you haven't responded to that

b)"There's probably almost no qualified conservative law professor who wants to teach primarily law &basketweaving" -- What's the basis for this? If basketweaving includes economics, then there are probably more conservatives than liberals in this category.

c) DB's claim is that the atmosphere at Yale is such that professors believe that no one to the right of Ackerman can get hired to teach public law. It's not fully responsive to say that there probably aren't that many openings these days anyway.

This is a stupid debate anyway. I'm not sure why non-Yalies feel the need to debate a Yale alum about Yale's hiring practices.
4.5.2007 1:01pm
davidbernstein (mail):
Putting the fact that he's a visitor and also not a public law scholar, what evidence, other than clerkships, do you have that Stuart Banner is conservative? Surely not his writings.

My claim was, and is, that Harvard under Kagan has been a lot more open to hiring conservatives than Yale has been under Koh. Your retort was that the article doesn't say that Yale is "not open" to hiring non-liberals, which is a separate point from whether they are less open than is Harvard. The latter point is clearly true, not just from the hiring Harvard has done, but from serious visitors they have entertained.

But even on the broader point you attribute to me, while acknowledging that Macey has been hired, I pointed out that even a liberal professor at Yale thinks that the school has a problem specifically with regard to public law. It didn't start with Koh, but there's no evidence that he's gone out of his way to change things.

As for Amar, his being hired over 20 years ago under the generally ideologically ecumenical deanship of Guido Calabresi has little bearing on whether someone of his views would be hired today. For that matter, who knows if the faculty then even knew much about his views when he was hired; as I recall, he was hired directly out of an appellate clerkship and didn't have much of a paper trail.
4.5.2007 1:07pm
Justin (mail):

Is the fact that Stuart Banner used to be a (full) member of the VC at all relevant?

I'm not sure the fact how the fact that Banner's visiting from UCLA (presumably on trial), is relevant at all.
4.5.2007 1:44pm
Wait, I thought the early 90s were the worst time for conservatives at Yale. Is it worst now? Worse, but not worst? Worcestershire? It's so hard to keep up.
4.5.2007 3:32pm
Brian G (mail) (www):
Mr. Koh came to my law school (U of New Mexico) last year for a visit. He is a nice and friendly man, I had the chance to meet him when he came by to visit our clinic. (Which is a great clinic by the way. We may not do U.S. Supreme Court litigation work, but we help a lot of people in the community against the IRS and protect a lot of domestic violence victims, inter alia). I also saw him speak. To call him a "highly partisan liberal Democrat" is akin to saying that this blog has some aspects of legal discussion. He is a far-leftist who would absolutely be a disaster on the Supreme Court. In fact, except for the dopes from the Humanist Society I had the displeasure of meeting, he is perhaps the most leftist speaker I have ever listened to in person, and rivals some guy named Pitt (I forget his full name) I saw on C-SPAN once as the biggest leftist i have ever seen speak.
4.5.2007 3:37pm
Brian G (mail) (www):
Let me clear about my last post. Although I don't agree with his politics, he was a very pleasant man to meet and took some time to talk with me at our clinic and treated me well. I certainly liked him.
4.5.2007 3:41pm
jonah gelbach (mail) (www):

I don't have a dog in this fight--I have no idea who's right or wrong on which point here. But I'm curious what you mean by "You've been warned" in this comment:

BTW, Justin, I'm growing weary of comments of yours that criticize me for something I didn't say as in this one (implying that I wrote that no one conservative ever teaches a public law class at Yale) and the one on Finkelstein (posting from the false premise that I wrote that I think Finkelstein should not get tenure for ideological reasons). You've been warned.
4.5.2007 6:38pm
davidbernstein (mail):
just that i may exercise mymoderator prerogatives
4.5.2007 7:25pm
UChicago 2L:
Sometimes Justin provides a valuable counterpoint to the prevailing VC posters and commenters, a sharply stinging gadfly who keeps people honest, himself included.

Sometimes Justin behaves like a startlingly pugilistic, presumptuous boor.

As an observer with no particular ideological dog in this fight, this clearly seems to be one of the latter situations.

Sorry Justin: while DB comes off as a bit tetchy by saying "you've been warned," you are clearly reading statements into DB's posts that are neither explicit nor implied, and then using them as a jumping-off point for an attack the aggressiveness of which seems rather wrongheaded given 1.) its basis upon statements unmade by DB; 2.) statements made by DB in the comments (e.g. re: Banner) and unresponded to.

I love ya bro, and think you're a pillar of the VC commenting community. But SRSLY...look before you leap.
4.5.2007 11:10pm
UChicago 2L:
Dang. Let's try that first sentence again:

"Sometimes Justin provides a valuable counterpoint to the prevailing viewpoint of VC's posters and commenters; he's a sharply stinging gadfly who keeps people honest, himself included."
4.5.2007 11:12pm
"[B]y all accounts a nice guy ... and beloved by his students"?

He may be nice to some and beloved of some, but "by all accounts" is a ridiculous overstatement. The man can be an incredible jerk, and his jolly smarmy charm is a mere facade, easily penetrated by others, and willingly discarded by him when it becomes inconvenient.

Knowing his character, and judging by your characterization, "by all accounts," Koh's not-so-veiled campaign for a Supreme Court seat is going very well.
4.7.2007 12:05am
jonah gelbach (mail) (www):

So you say that by "You've been warned," you're letting Justin know

just that i may exercise mymoderator prerogatives

And here I thought that a commitment to open debate was a critical part of your threads, and VC in general.

It's particularly ironic that you make censoring threats in a thread in which you bemoan someone else's (personal and institutional) lack of open-mindedness.

Personally I'd be embarrassed to have written what you did.
4.7.2007 12:22pm
glasnost (mail):
Let me get this straight. Harold Koh's total unfitness for the Supreme Court can be judged from the fact that during his tenure at Yale he hired less conservatives than Harvard?
Am I interpreting DB correctly?

So obvious Democratic choices for the Supreme Court should all be.. liberals who hire as many conservatives as possible?

This is a great argument, as long as you openly admit that it's nakedly partisan, lacking in non-explicitly-partisan merit, and the reason you oppose Koh is that you want to browbeat Democrats into appointing conservatives, just like republicans do.
4.8.2007 1:27am
Glasnost hit the nail on the head. What the complaints all boil down to is the claim that Koh would be a disaster on the Supreme Court because he's too liberal. It's fine for Bush to appoint right-wing ideologues to the Court, but a Democratic President appointing a left-wing ideologue would be an unmitigated disaster! :-/
4.9.2007 11:35am