Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Sunday, May 6, 2012

Yet more on Liz Warren

MOVING TO THE FRONT FROM MAY 4--UPDATED

My former Texas colleague Mark Gergen, now at Berkeley, and who was also at Texas when Liz Warren was there (unlike me) writes:

Thanks for the two posts on Liz. If you revisit the subject consider making two points. One is that the most striking thing about Warren's career path is that she is a graduate of Rutgers Newark Law School. The elite law faculties have very few graduates from non-elite schools. Not surprisingly, they tend to be very able.

The other point goes to the diversity listing. There are numerous examples of faculty being listed as within a diversity category who are not perceived as diversity hires by proponents of diversity in hiring. The identification of Liz as part American Indian was in 1986. This was at a time when the institution wanted to increase the numbers for reporting purposes. The institution's purposes may have been cynical. I have no reason to think that Liz was acting cynically in identifying her Indian heritage. Unlike some others I could name, she never joked about the matter. No internal constituency that favored diversity hiring ever perceived her as filling this role. Certainly she never claimed to fill this role.

UPDATE MAY 6: I see that the obsessed are still afflicted with the non-issue du jour. Two observations about this most recent display: (1) Professor Zywicki, a law professor at George Mason who has never participated in hiring at an elite law school (like Texas, Penn or Harvard, all schools where Warren was hired), declares it "obvious...why Elizabeth Warren self-identified as Native American all those years...which was to get an edge in hiring." As we have noted previously, Professor Zywicki is sensitive about why he is not at an elite law school, and no doubt the fantasy that elite law schools are falling over themselves to find Native Americans (in his own field nonetheless!) offers some consolation, but for anyone ever involved in hiring at any of the elite law schools at issue in Professor Warren's case, the assumption is a bit silly. For 11 of my 13 years at the University of Texas, I was on the appointments committee, several times running lateral and/or rookie hiring, and only once did I ever hear the "Native American" heritage of a candidate mentioned, and it was met with a general shrug. Given how right-wing crazies hate affirmative action, it is surprising how naive they are about its actual operation at elite law schools. (The embarrassing quote from Larry Sabato, a political science professor at UVA, tells us more about political science departments than anything else!) (2) Bizarrely, Professor Zywicki is concerned that "a credentials snob like Leiter doesn’t raise an eyebrow at Harvard’s lone Rutgers grad." The reason not to "raise an eyebrow" is the one, noted above, by Professor Gergen, but even some commentators at the Volokh blog were puzzled by the accusation that I, of all people in legal academica, is a "credentials snob"! I will plead guilty to being an egregious smarts snob, which is why anyone who has ever been on appointments with me can name many superbly credentialed candidates that I opposed on the reasonable grounds that they were, in reality, "f-----g morons." Credentials can sometimes be good proxies, but they tend to be easily defeasible in legal academia, a lesson that some elite law schools learned the hard way. Nothing I've ever written or done would suggest otherwise.

All of which is to say that the answer to this commenter's question may well be 'no.' (This comment is also amusing, and suggests the Bernstein-Zywicki show is getting to be a bit much for the regular readership.)

ANOTHER:  Adam Levitin, a bankruptcy and commercial law scholar at Georgetown, writes:

One point to add to your coverage of the Elizabeth Warren heritage non-issue.  Todd Zywicki has a long history of bad blood with Elizabeth Warren.  Todd was the only academic who supported the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act [BL:  the "No Credit Card Company Left Behind Act"].  He and Elizabeth locked horns repeatedly in the multi-year legislative fight leading up to the Act, which Todd testified was so perfect that he wouldn't change a single word of the statute (this for a statute with missing words and incomplete sentences!).  Todd has never hesitated to take a swing at Elizabeth since, be it on Volokh or on the WSJ op-ed page, and while their disagreement is fundamentally political some of Todd's writing does have a personal edge to it.  Therefore I don't know if this is simply score settling for Todd, but it is notable that he of all law professors is leading the charge, even though the underlying issue isn't one to which he has devoted particular attention in the past.  Perhaps the best test is this:  does anyone think Todd would have written anything on the topic if the candidate had been someone else? 

I appreciate the context supplied by Professor Levitin, though I don't know the answer to his final question.  The George Mason folks increasingly remind me of the Stalinists of yesteryear, obsessed with ideological purity and relentless in pursuit of their ideological enemies.  Perhaps this is personal, and perhaps it is just "pure politics" as it were.

AND ONE MORE:  The observations of Carl Bogus (Roger Williams) are pretty much what anyone who actually knows how law schools work would have concluded, but he sets it out well.

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