The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Imagine that a well-known conservative federal judge has a last-minute need for a clerk, and it's important to him to have a clerk who shares his general political ideology. He gets two applicants. One is white woman from a small town in Kansas who went to the University of Kansas Law School and notes on her c.v. that she teaches Sunday school at an evangelical church. The other is an African American man from New York City who went to Yale Law School and notes on his c.v. that he is a vice-president of the local chapter of the Skeptic's Society. Both list "member of the Federalist Society" on their c.v.
So the only direct evidence we have of the ideology of the applicants is that they are both members of a conservative legal organization. Which one might you expect the judge to have suspicions about, ideology-wise?
The easy answer would be the male. Our Bayesian priors would be that being African-American, from a heavily blue area, a "skeptic" (unlikely to be religous), and a graduate of Yale Law School are demographic indicia of liberalism. Put them all together, and a judge may need a lot of convincing that the applicant is "really" a conservative.
I think that the easy answer often going to be the right answer, even though the judge may in fact be looking at it the wrong way. One could argue instead that it's easy enough for someone like the female candidate to join the Federalist Society–she's from a conservative part of the country, she went to a law school in that part of the country, and the people she associates with in church are generally conservative. She could easily join Fed Soc without thinking twice, even if she doesn't have an especially well-thought-out worldview, and even if many political positions she does hold aren't conservative.
By contrast, the male candidate likely grew up around people who not only identified as liberal Democrats, but many of whom thought of Republicans and conservatives as "the enemy." Attending Yale Law School only provided further reinforcement of such attitudes. As an African American, he is constantly challenged by liberals of all races of how he could align with "the enemy." His social circle of skeptics tends to be disdainful toward conservatives, especially religious ones. If he nevertheless publicly identifies as a conservative, this suggests that he's thought about things deeply, and despite being constantly challenged, and at times perhaps socially shunned, for his views, he is steadfast.
If the judge happens to be a black conservative–when I said "well-known conservative judge," you pictured a white person, right?–he is much less likely to approach the decisionmaking process with a bias toward thinking the African American candidate isn't really conservative. But the white judge you had pictured in your head may very well have that bias, having not had the experience of identifying as a conservative in a hostile ideological and social environment.
This gets us back to my post about the barriers Neomi Rao and Jessie Liu faced when President Trump nominated them to high-level positions. Some critics have suggested that I accused their leading critics, Sens. Josh Hawley and Mike Lee, respectively, of racism and maybe antisemitism for suggesting that the nominees being women of color who are not members of conservative churchs may have played a role in the opposition.
Here's what I wrote: "Please note that I'm not accusing the Senators in question of antisemitism. Nor am I accusing them of conscious racism. But I do suspect that in certain conservative circles, people have an image in their head of what a 'trustworthy' conservative looks like, and that person is white, likely male, and a religious Christian. Those who don't fit that mold are more likely to have their conservative credentials questioned."
Miy bad, at least in part, for not making it clear that in not accusing the Senators of conscious racism, I wasn't accusing them of unconscious racism, either, but of "bias" in the social science sense. In my judge hypothetical, I think it would be grossly unfair to say that a judge who, based on demographic heuristics, was more trusting of the female applicants' conservatism than of the male's, was being "racist." Rather, his strong, empirically-based Bayesian priors (a "bias") of the likelihood of an agnostic black male Yale law graduate being conservative created a cognitive bias which would be difficult for that applicant to overcome.
Of course, it could be that Hawley and Lee were piqued at Rao and Liu, or at Trump, or at the AG, for undisclosed reasons and just used their purported ideological untrustworthiness as their public excuse. But that wouldn't explain why so many conservative bloggers and some interest groups were so eager to jump on their bandwagons, even though they were entirely accepting of other nominees whose conservative (including pro-life) credentials were far from well-established. Indeed, some of these same people and groups have expressed a vocal president for certain potential Supreme Court nominees, based on little more than knowledge that these potential nominees are people of traditionalist Chrisitan faith.
For the reasons noted above, it's not at all clear that someone who fits the demographic mold of a "Christian conservative" is going to be a more steadfast judicial or legal conservative than someone who doesn't. But regardless, when the only two high-level Trump attorney nominees to get public opposition from prominent conservative Senators based on little more than hearsay and speculation don't fit the demographic mold, it suggest a "bias" favoring those who do. And that's why I suggested that the Republicans are skating close to identity politics.
ASIDE: It would be nice if my critics would be more careful with their facts. Just for example, at the Federalist Kyle Sammin references Liu's "longtime membership in the National Association of Women Lawyers." As I understand it, Liu was involved in the NAWL for less than two years, and, according to her account, quit because the organization was getting too political (and left-wing). She quit in 2006.
It would also be nice if the critics were more consistent. The "objective" basis for opposition to Liu was that she was involved in the NAWL when it opposed Alito and filed a pro-choice amicus brief. Liu personally and publicly supported Alito's nomination, and no one has presented evidence that she agreed with the brief. Meanwhile, one of my critics, Cleta Mitchell, began her career as a liberal feminist Congresswoman. My critics also support Donald Trump, who was publicly pro-choice until he started contemplating a run for president as a Republican. Based on their own implicit criteria, Mitchell and Trump should be forever blackballed from any important role in conservative politics, on much stronger evidence than they have re Liu.
UPDATE: After I wrote this post, it occurred to me that race may play a role in various conservatives, within and without Congress, being skeptical of "minority" nominees, for the following reason: there is always political pressure to have "diversity" in high-level appointments. Conservatives may worry that administration poobahs will be tempted to hire candidates that don't meet normal "conservative" standards in order to choose a candidate who is a member of a visible minority group (and female). So, ironically, the more political pressure there is to hire women and minorities, the more vigilance conservatives may think they need to engage in to ensure that women and minority nominees are on-board ideologically. This is on the one hand not illogical, but on the other entirely unfair to the candidates.