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Academic Freedom

Faculty Letter Against Firing Ilya Shapiro

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I don't normally do this sort of thing, but in light of the continued calls to terminate Ilya Shapiro from Georgetown University Law Center because of his tweets last week, I was part of a group of professors who sent the following letter to Georgetown Dean William Treanor. (Signatories include several other members of this blog, and many professors not on this blog.)

Here is our letter, available at FIRE:

Dear Dean Treanor:

We understand that some have called for Ilya Shapiro to be fired from his position as Executive Director of the Georgetown Center for the Constitution, because of his tweet criticizing President Biden's pledge to appoint a black woman as a Justice. We think such a firing—or subjecting Shapiro to disciplinary action of any kind based on his tweet—would be contrary to basic academic freedom principles, which Georgetown rightly applies (1) to "all faculty," including "lecturer[s]" such as Shapiro, and not just tenure-track faculty, and (2) to "professional service" and "all the domains of [faculty] academic activity," which would include public commentary by public intellectuals, and not just "research" and "teaching."

We agree that the reference in the tweet to "a lesser black woman" was a poor way of expressing the message (and Shapiro's apology seems to agree as well). "[Sri Srinivasan] doesn't fit into the latest intersectionality hierarchy so we'll get [a less-qualified] black woman" is presumably what Shapiro meant to say. But setting aside that one mistake—which should not be seen as a fireable offense—the substance of the message, which is that Sri Srinivasan is the most qualified progressive nominee, and that it's wrong for the President to pass him over because of race and sex, is a position that is most certainly protected by academic freedom principles of "[f]ree inquiry and unconstrained publication of the results of inquiry."

To be sure, the substantive position about the President's pledge, and about the relative qualifications of the various possible appointees, is not a position that all of us endorse. Indeed, some of us have publicly disagreed with it.

But academic freedom protects Shapiro's views, regardless of whether we agree with them or not. And debate about the President's nomination, and about whether race and sex play a proper role in such nominations more generally, would be impoverished—at Georgetown and elsewhere—if this view could not be safely expressed in universities. Indeed, to the extent that people do think it's proper for a President to promise to fill a position with a member of a particular group, they can only have real confidence in that conclusion if they know that the contrary view can be freely supported and discussed, and has been found unpersuasive on the merits rather than silenced by fear of firing. That is famously the way academic discourse about science operates. And it is true for moral and political judgments as well.

More broadly, firing Shapiro for expressing his views will send a message to others in Georgetown—both faculty (and especially untenured faculty) and students—that debate about matters having to do with race and sex is no longer free; that the promises of academic freedom are empty; and that dissent from the majority views within the law school is not tolerated. That will chill far more than just honest discussions of this particular Presidential nomination.

Sincerely,

  • Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles
  • Samuel J. Abrams, Professor of Politics and Social Science, Sarah Lawrence College
  • Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University
  • Kenneth Anderson, Professor of Law, American University Washington College of Law
  • William Baude, Professor of Law, University of Chicago
  • David E. Bernstein, University Professor, Antonin Scalia Law School, George Mason University
  • Josh Blackman, Professor of Law, South Texas College of Law Houston
  • Paul G. Cassell, Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law
  • Nicholas A. Christakis, Sterling Professor of Social and Natural Science, Yale University
  • Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame
  • Robert P. George, McCormick Professor of Jurisprudence, Princeton University
  • Gail Heriot, Professor of Law, University of San Diego
  • Randall Kennedy, Michael R. Klein Professor, Harvard Law School
  • Amna Khalid, Associate Professor, Department of History, Carleton College
  • Eugene Kontorovich, Professor of Law, Antonin Scalia Law School, George Mason University
  • Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University
  • Brian Leiter, Karl N. Llewellyn Professor of Jurisprudence, University of Chicago
  • John McWhorter, Associate Professor of English and Comparative Literature, Columbia University
  • David G. Post, I. Herman Stern Professor of Law Emeritus, Temple University Beasley School of Law
  • Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law, The University of Tennessee
  • Adam Scales, Professor of Law, Rutgers Law School
  • Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
  • Jeffrey Aaron Snyder, Associate Professor of Educational Studies, Carleton College
  • Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
  • Alexander Volokh, Associate Professor of Law, Emory University
  • Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
  • Jonathan Zimmerman, Judy and Howard Berkowitz Professor in Education, University of Pennsylvania
  • Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University

Note: Further signatures will be continually added as they arrive. If you're interested in adding your signature to this letter, please email facultyoutreach@thefire.org.


And here is an email subsequently sent out today by Dean Treanor:

Dear Members of the Georgetown Law Community,

Over the past several days, I have heard the pain and outrage of so many at Georgetown Law, and particularly from our Black female students, staff, alumni, and faculty. Ilya Shapiro's tweets are antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity. I have heard and listened to a wide range of views, and I am grateful to the many members of the community who have reached out to me and other leaders at the school to share their thoughts.

I am writing to inform you that I have placed Ilya Shapiro on administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment, the results of which will inform our next steps. Pending the outcome of the investigation, he will remain on leave and not be on campus. This investigation will follow the procedures established by Georgetown University.

Racial stereotypes about individual capabilities and qualifications remain a pernicious force in our society and our profession. I am keenly aware that our law school is not exempt. We will continue our work with students, staff, alumni, and faculty to put in place strategies, policies, and practices to strengthen our community and our commitment to justice and equality for all. And I remain committed to working with each of you to create a community where we can all thrive.

Sincerely,
Bill Treanor

I may have more to say about this, but it remains to be seen what else will happen.

UPDATE: This also seems like a good occasion to repost Professor Jacob Levy's advice for universities on social media controversies, which it seems like many university administrators need to print out and tape next to their computers:

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NEXT: Offices and Officers of the Constitution, Parts I and II

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  1. 1. Every day, there is a game on twitter. One person is "it." Don't be that person.

    2. As always, twitter sucks; I have yet to see a truly beneficial use, but have repeatedly seen people suffer from using it.

    3. Ilya Shapiro's tweet was bad. It just was. I didn't comment on it, but EV's post about it was one of the worst things he has written in a while.

    4. That said, he shouldn't get fired. People say things inexpertly, inarticulately, or even (gasp) incorrectly. Your life and profession shouldn't be destroyed because you fired off an inarticulate tweet that momentarily caught the mob's attention.

    TLDR; I think that Shapiro's tweet was terrible, but it was just a tweet. I agree that termination (??!!??) of Shapiro's position for this tweet is unwarranted.

    ...then again, I'm not sure I'd sign a letter than included Blackman, Zywycki, Heriot and Kontorovich. I'd probably send my own letter at that point.

    1. There's nothing wrong with the tweet. In context it clearly meant "less-qualified black women".

      Especially in the context of other "acceptable" tweets like the one from Prof. Fair below.

      1. Except those don’t exist. The main candidates are equally if not more qualified. So who was he talking about?

        1. He had a favorite candidate, and thought everyone else had "lesser" qualifications. That's all that was going on with that tweet.

          1. And his favorite candidate was “objectively” better than people with the same or better resumes. Why was he “objectively” better than these highly accomplished black women?

            1. For stupid reasons that shocked me in somebody heading up the Cato Institute. Being Indian would add more diversity to the Court than another black or another woman. Reliably "progressive". (Why is this a plus from a libertarian perspective???)

              I'm not defending his taste in Supreme court nominees, merely his right to have one, and express it.

            2. He was "subjectively" better to Shapiro because he has a track record of opinions Shapiro thinks the short list can't match.

              1. But he didn’t say subjectively he said objectively. He thought it was objective. Why?

                1. Because everyone thinks their opinions are objective fact, if they're philosophically shallow.

                  1. No they don’t lol. Also: are you admitting to being philosophically
                    shallow?!?

                    1. I'm admitting to being aware of when I'm expressing opinions, anyway.

                      And, yeah, shallow compared to the idea, certainly.

                2. Because obviously LTG, he's a filthy racist and deserves everything he's getting.

                  Right?

                3. He believed his favorite candidate was objectively better because he had reached better reasoned opinions. Just because an opinion is an opinion doesn't make it 'subjective.' What's more, even if he's wrong, and some black woman is actually a better judge, that still doesn't make him racist, any more than it would be if someone mistakenly believed some particular black woman were a better judge than a non-black/female judge is necessarily racist. In order to be racist, you have to believe that one judge is worse than another judge *because* of their race, and nothing about Shapiro's tweet indicates that. Indeed, that's precisely the position he's criticizing.

                  IOW, even if you disagree with his opinion on who the best judge is, that still doesn't make his opinion racist. If you think Obama was a better president than Eisenhower, would you consider everyone who disagrees automatically racist? Is believing - even erroneously - that any specific non-black person is better at their job than any specific black person automatically racist? That would seem pretty ridiculous, no?

                  1. Obama vs. Eisenhower is OK, but Shapiro did not state that his favorite candidate was superior to a specific black female potential nominee. Rather he implied that every single black woman was less qualified (or perhaps not qualified at all) to sit on the SC. Moreover, he stated that any black woman elevated to the SC to replace Breyer would have an "asterisk" beside her name; how is this not a racist statement?

                    1. "Rather he implied that every single black woman was less qualified"

                      If I think Bach is the best composer evah, then, yes, I'm saying that every single composer who is French, Spanish, female, lived in any period other than 1685-1750, or wasn't orphaned as a ten year old is a lesser composer. That follows directly from the definition of 'best'.

                      "(or perhaps not qualified at all)"

                      Your words, not his.

                      "...he stated that any black woman elevated to the SC to replace Breyer would have an "asterisk" beside her name; how is this not a racist statement?"

                      Reagan was reportedly into astrology. If he announced that he had consulted the stars and his next pick was going to be a Capricorn, that nominee would be forever remembered as 'the one that got picked because they were a Capricorn'. Pointing that out doesn't mean one dislikes Capricorns.

                      The error here was Biden announcing that he was restricting his search - he should have said 'I will pick the best candidate', then picked whoever he wanted, for whatever reasons he wanted, and just said they were the best candidate. Saying you're only going to consider Capricorns is an unforced error - it's a gift to people who are looking for reasons to dislike your choice.

                      Heh. He should pick Condoleeza Rice and watch people on both sides scramble to reverse their positions 🙂

            3. Srinivasan has an excellent resume on paper. While it's silly at this level to claim that one person is 'objectively' better than another, it's not silly to think Srinivasan is the best choice.

        2. Sigh. Maybe you didn't read the tweet.

          Shapiro claims that an Indian man is the most qualified candidate. That implies any anyone of any other color or configuration is a lesser candidate.

          You are of course free to disagree with him about Srinivasan, but Shapiro's entitled to his opinion.

          1. His claim is nonsense though. Also: don’t forget the asterisk remark. He never said that about Barrett (picked because she’s a woman) or Thomas. Or O’Connor. Only the black woman gets the asterisk. Wonder why that is?

            1. How old do he think he is? O'Connor was 40 years ago.

              1. I’d expect a scholar to be up front about those things. Saying someone deserves an asterisk without history is gross. If she gets an asterisk he needs to admit O’Connor Thomas and Barrett get them too.

                1. Up front about things that happened when he was in grade school?

                  Your problem is that Biden was stupid and he tainted his own nominee. So you rage against a tweet with excessive anger.

                  1. "Up front about things that happened when he was in grade school?"

                    There's an entire discipline called "history" that studies and acknowledges things that happened in the past...have you ever heard of it? You can use this discipline to contextualize your arguments and make them more honest.

                    This is something that people who purport to be serious scholars discuss when making pronouncements about things, like whether a nominee if forever tainted. If he acknowledged that history and didn't single out the Black woman for the asterisk we wouldn't be having this conversation, now would we?

                    1. Are you qualified to make assessments about history?

                    2. Not as qualified as the professionals, but I do have a history degree, did graduate level coursework when I was in undergrad, and try to keep up with what academic historians are working on.

                    3. And I'll bet you stayed at a Holiday Express Inn too...

                      You know...for someone who thinks that only professionals can accurately evaluate the criteria and issues in their profession, even in a conversational discussion...

                      It's odd how quickly you, an amateur who just tries "to keep up with what academic historians are working on" seems so confident in assessing issues of history. You know, since according to you only professionals are capable of it.

                      Not surprising mind you. But odd.

                  2. Indeed ... "the lady doth protest too much, methinks ..."

            2. "His claim is nonsense though. Also: don’t forget the asterisk remark. He never said that about Barrett.

              It's not nonsense. You may not agree, but it's a perfectly valid argument.

              And he's supposed to make the same comments about all justices? Maybe he didn't have an opinion about a better qualified candidate in that case. Or maybe he didn't feel tweeting. Who knows?

              1. If you’re going to single out a black woman for an asterisk, when you know other justices were diversity picks, You damn sure better add historical context if you don’t want to be accused of dishonesty or racism.

                1. I think we can all agree that he should have worded the tweet differently if his goal was to avoid being accused of something he’s not.

                  I don’t think you think he’s racist or dishonest. If you’re simply criticizing his wording for practical reasons, based on how you know bad faith interpretations will hurt him, that’s totally fair.

                  But I don’t think you personally are making that bad faith interpretation. And I believe in your heart of hearts, as much fun as it is to stick it to the conservatives on this blog, you don’t actually like that academia works this way.

                2. "If you’re going to single out a black woman for an asterisk..."

                  What's the evidence that Barret gets an asterisk anyway? From what I've seen Trump delayed appointing her so he could replace Ginsburg with her.

                  1. "What's the evidence that Barret gets an asterisk anyway?"

                    Literally answered your own question in the next sentence, dude.

                    "From what I've seen Trump delayed appointing her so he could replace Ginsburg with her."

                    He was saving her to appoint a woman to replace a woman. That's like the most asterisk-y thing ever.

                    1. If TwelveInchPianist's claim is true (and I don't think it is), that would indicate that she was discriminated against.

                    2. Against and for. She was slotted for a specific seat over everyone else. And excluded (in favor of white men) for the first two.

                    3. LTG,
                      I'd drop the whole asterisk thing. It was childish to begin with and the "if X gets one then Y should" is just as childish.
                      It's Joe's choice, perfectly understandable in the context of patronage politics.

                  2. From what I've seen Trump delayed appointing her so he could replace Ginsburg with her.

                    What have you seen?

              2. You’re wasting your time here. There is no other acceptable explanation. Shapiro is racist. Period. He refuses to comprehend the tweet in the manner in which it was meant.

                The fact that the tweet was posted in favor of a different minority doesn’t mean squat. Shapiro touched the third rail - he sad something that criticizes a group of black people.

                I mean, I think Nolan Ryan was a better pitcher than Doc Ellis. Pretty clearly I’m racist too. That’s his logic.

                1. Do you say Doc Ellis is a lesser black man? Do you say he's always going to have an asterisk next to his name?

                  1. Do you say Doc Ellis is a lesser black man?

                    Is there a literate adult in your home? If so, help them with reading and comprehending the comments you're responding to so you won't need to ask more stupid questions like that one.

                    1. "Is there a literate adult in your home? "

                      I don't think there is.

                    2. I am an adult. And I’m quite literate, thank you very much. Unless illiterate people spend their time reading Metaphysics of Morals.

                    3. Unless illiterate people spend their time reading Metaphysics of Morals.

                      Is that what you're hiding your Archie & Jughead comics inside when people are around? I guess that's as good a choice as others.

                  2. If Doc Ellis had been selected to the Baseball Hall of Fame instead of Nolan Ryan because the committee that makes such selections had committed to make their one and only one choice that year a black pitcher then it would be perfectly appropriate to say that the fans who care about such accessions would have to be satisfied with a lesser black pitcher.

                2. Doc Ellis pitched a no hitter on acid! Something a lesser white pitcher like Nolan Ryan never could never have pulled off.

                3. " I think Nolan Ryan was a better pitcher than Dock Ellis. "

                  Nolan Ryan was a good pitcher, but could Nolan Ryan have thrown a no-hitter on acid?

                  Was Nolan Ryan fit to lace Greg Maddux's shoes?

                4. Are you willing to fire all the racists in academia?

                  How about Kendi's claim that Barrett is a 'white colonizer' using her Haitian children as 'props'? Where's the uproar?

            3. Because Trump did not promise to nominate a woman. Biden is specifically saying he will (in a quid pro quo to get Clyburn's endorsement), which indicates he had to limit his search.

              I, personally, don't give the first iota of a damn if he is fired.

              1. Yes he did. He specifically said he was going to appoint a woman to replace Ginsburg. And then did.

                1. Yup, that was Trump's choice.

            4. He is a racist. That is why. Right?

            5. His claim is nonsense though.

              Are you stating that as an objective fact?

            6. Trump, to my knowledge, never said he was going to pick a woman. You can speculate that he only picked her because she's a woman, but I'm pretty sure a shortlist including men and women was considered. I don't think Thomas was explicitly picked for his race either. In any case, Thomas was 30 years ago and O'Connor 40.

                1. I'm perfectly OK with giving ACB an asterisk.

                  Though I'll admit they all have asterisks. As Trump said about Mexico, they (Presidents and Senate) are not sending us their best, and never have.

        3. "So who was he talking about?"

          The short list of women. We all know the names. It wasn't all black women or all black woman lawyers.

          His preferred candidate has a track record of opinions on the court that Shapiro thinks is superior to those few women. You keep bringing up paper credentials [EIC of law review], which are not the sum of "qualifications".

          1. Neither is being on the DC Circuit the sum of qualifications. He ignored the obvious qualifications of the potential candidates and simply claimed they were “lesser black women.” He didn’t engage with them at all. He just assumed they were lesser because they were black women.

            1. "He just assumed they were lesser because they were black women."

              Now who is assuming?

              1. It’s a valid assumption based on the facts.

                1. No it's not. What facts?

                2. It’s a valid assumption based on your bias. He expressed an opinion. You don’t agree with it. That doesn’t make him racist.

                  By your own logic you’re racist against Indian-Americans. Hater.

                  1. Um no. I'm against people who use the phrase "lesser black women" and then follow it up "will always have an asterisk attached." He phrased it that way because that's what he meant. Ockham's razor.

                    1. He wasn’t the one that brought black woken into the competition. Biden did.

                      It would have been pointless for him to post “any white male nominated instead of my guy will carry an asterisk” because that wasn’t in play.

                    2. If Biden didn't say "I'll nominate a black woman", then had he nominated one, there would be no asterisk. But, like his useless VP, when you say you're going to limit the choice to a specific race and sex, it is little difficult to claim that this person is the most qualified.

                      ...see, if they were best qualified, Biden would have just said "I'll nominate the best person available".

                    3. "If they were best qualified, Biden would have just said "I'll nominate the best person available".

                      Obama did that in 2009 and nominated Sotomayor and she was still attacked as an affirmative action pick. Despite being the "resume" candidate.

                    4. Obama did that in 2009 and nominated Sotomayor and she was still attacked as an affirmative action pick.

                      By Somin? If not then your observation is irrelevant.

                    5. "Somin"

                      Dammit...Shapiro. Got my Ilyas mixed up.

                    6. WuzYoungOnceToo: "By Somin? If not then your observation is irrelevant...Dammit...Shapiro. Got my Ilyas mixed up."

                      Hmmm. Search on this: ""In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit... While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic."

                      Let me know who said it.

                    7. @Purple: Shapiro said it, I see Newsweek says. He was right about that too, no surprise.

                    8. OK, so Shapiro did in fact make that argument. Note that I didn't claim that he didn't. I only asked if he did, as the original charge didn't indicate that he did.

                      But for what it's worth, he made a good case for the argument that Obama did NOT nominate the best candidate available.

                  2. So Black women were never "in the competition" before Biden brought them in, is that what you are saying?

                    1. No. By saying that only black women need apply, Biden cut off all other candidates, including Shapiro’s personal favorite. Shapiro didn’t like that and expressed his disappointment inartfully.

                      If Shapiro wanted to be racist he could simply have said “no black women are qualified”. An absolute statement. He didn’t do that. He expressed doubt in them relative to his preferred candidate. It’s really obviously simple.

                      It’s an opinion based on his observation of the judges involved. You presumably disagree, although one wonders if you favor them simply because they’re black women. Doesn’t matter, you’re both entitled to your opinion. His doesn’t mean he hates black women any more than yours indicates you hate Indian-American men.

                    2. So Black women were never "in the competition" before Biden brought them in, is that what you are saying?

                      LOL! Now you sound like a Sarcastr0 (never met a straw man he didn't like) clone.

              2. Have to agree with Bob here, Law. Shapiro isn't at all implying that they are lesser because they are black women. What Bob said above is the most correct I think:

                "His preferred candidate has a track record of opinions on the court that Shapiro thinks is superior to those few women."

                1. I think he said what he meant. It wasn’t good.

                  I also don’t think he should be fired for it, but I’m not going to twist myself into contortions trying to get at his intent on this one. Particularly for the super uncalled for asterisk comment.

                  1. but I’m not going to twist myself into contortions

                    You mean, like you've already done repeatedly dishonestly putting words into people's virtual mouths?

                    1. Maybe he's a Russian Troll?

                    2. “Lesser black women”

                    3. “Lesser black women”

                      And...?

                  2. You're the one doing exegesis here. He neither said nor implied that the black woman considered were less qualified than his favored pick were less qualified because they were black. People are flat out pulling that out of their asses. He said they were less qualified, period. Do you honestly believe that positing that someone who isn't black is better at something than someone who is black is automatically racist?

                    1. “Lesser black women”

                    2. Are you saying they're not black women?

                  3. His choice of words was definitely unwise. He should have said something like 'lesser candidate'

                    1. Nonsense. Biden had already declared that only black women were candidates, so "lesser candidates" and "lesser black women" are the same set.

              3. Bob,
                It was the way Shapiro's tweet reads whether he meant it that way or not.
                As Red Auerbach used to say,
                "It's not what you say, it;'s what they hear."

                1. "They" in that case were his players, not "random jackasses".

            2. In the age of Affirmative Action, it's the safest assumption.

            3. No he didn't. You're making that up.

              1. He said what he said. And he meant it.

                1. He meant what he said, which was not what you obtusely insist he meant.

    2. loki13, I agree with 1-4 above. I would note two things.

      One, for executive management, different rules apply. Shapiro had a brain-fart of truly epic proportions. Can't do that at that level. That leads to...

      Two, there are unjust outcomes every day. I expect after a decent 'face saving' interval, Professor Shapiro will move on. Based on what the Dean wrote, Shapiro is in roiling hot water.

      WRT Professor Shapiro, the rule is: First, do no more harm.

      1. The rule “first do no harm” would prevent people from expressing themselves. And in that way, the rule would do harm.

        That people are on a witch hunt to reveal the racists among us, looking for hidden signs of racism in their writings, is the actual problem. You are blaming the accused witch, rather than the irrational witch-hunting.

        1. That, a thousand times. There was nothing wrong with his tweet, if interpreted with even a miserly degree of charity. It was perfectly clear what he meant, and what he meant wasn't at all racist.

          The problem was, it was interpreted with an extraordinary degree of malice. And predictably so.

          If I have any complaint, it's about the caving and groveling. It was never going to convince the lynch mob to relent, and he's only making it easier to go after the next victim. The pogrom continues until the victims refuse to surrender.

          Predictably so, and if I'd criticize him for anything, it's not realizing that he was walking through a verbal minefield.

        2. No David, I said, "First do no MORE harm". Qualitatively different. Shapiro stepped in it. He is an Executive Director of a non-profit. He is not some 'shmoe'. Now he has to be very smart on how to manage his way through this shitstorm by first doing no more harm (don't make it worse).

          It doesn't matter if he is right (he is). It doesn't matter if we agree with him (we probably do). What matters is how he deals with this crisis, and it is a crisis.

          People are exposed to unjust outcomes all the time. Just because you have JD after your name does not make you magically immune to unjust outcomes.

          1. I disagree that a Twitter witch hunt constitutes a crisis.

            And a JD is magic. It destroy all chance of injustice. It is kind of like Hogwarts. You really need to read Harry Potter or a take a remedial class in Magic 101.

            1. LMAO = And a JD is magic

          2. If he's right (I think he is), then how did he 'step in it?' Expressing sound opinions is now a 'brain fart' if it offends belligerent morons?

            I mean, in some sense, I agree. Why martyr oneself? Shapiro has been around long enough to know the lunatics would go after him for expressing his opinion. But morally he's blameless. The only thing he's guilty of his putting his desire to express his opinions above self-preservation. The lunatics trying to ruin him are the ones who are blemeworthy here.

      2. I don't know.

        I'm hoping that we reach a new level of equilibrium with social media scandals. Kind of like how we are with "nude pictures/selfies" on the internet now- they are so common, that they aren't the career killer that they used to be.

        In time, maybe we will learn to cut people a little slack. Otherwise, we all end up in Bob from Ohio's Trumpian dystopia where "never apologize, just keep lying" becomes the accepted norm.

        That would suck.

        1. I understand that you reasonably disliked Ilya’s wording. But knowing full well what he meant, do you disagree with the substance of his opinion?

          Or even if you believe that race should in fact elevate a candidate above a more qualified candidate for the Supreme Court, do you think the opposing view is so dangerous that it should never be voiced? Do you think it’s overall good or bad to have the discussion?

          1. I completely disagree with what he wrote (the substance). This is why-

            1. There is no single "best" candidate for the position- that's just not correct. I think that there are those who are unqualified, but between the many, many that are qualified, it's not a slamdunk.

            2. I think Sri Srinivasan is a fine judge and would make a good choice. However, I also think that he is overrated by virtue of being on the D.C. COA- people like Shapiro that are in the beltway are already more familiar with him that other judges. Doesn't make him "better" (for whatever value of better you are using).

            3. Using the phrase "intersectionality hierarchy," was unfortunate. Saying that we would end up with a "lesser black woman" (to some imagined non-black woman) was terrible. Following it up by saying that the nominee would always have an asterisk and it's fitting that affirmative action be on the Court's docket? Yeah, not great Bob.

            In my opinion, would Biden have been better off just staying silent and then picking a black woman, the way so many white men have picked in the past? Sure.

            But the substance of this tweet was poor, and the wording made it terrible. Still think Shapiro should be protected, but the lesson, as always, is don't tweet.

            1. "Using the phrase "intersectionality hierarchy," was unfortunate."

              Was it unfortunate because there isn't one, or because there is, but we must not speak of it?

              I myself disagree with the sentiment expressed in the tweet, but that doesn't make the tweet unclear or plausibly racist.

              1. loki didn't say racist, he said terrible.

                1. What makes it "terrible", then? He expressed the opinion that Sri Srinivasan was the best possible nominee. I'm not entirely enthusiastic about his grounds for saying so, especially if they indicate how the staff of the (formerly libertarian?) Cato Institute are thinking these days, but it wasn't an offensive opinion.

                  Thinking Sri the best possible nominee, of course all others were "lesser", and if race and gender criteria excluded Sri, they guaranteed a "lesser" nominee.

                  Nothing terrible there. Unartfully phrased in a hostile environment, but not "terrible".

                  1. Using the phrase "intersectionality hierarchy," was unfortunate. Saying that we would end up with a "lesser black woman" (to some imagined non-black woman) was terrible. Following it up by saying that the nominee would always have an asterisk and it's fitting that affirmative action be on the Court's docket?

                    It's this.

                    Intersectional hierarchy is like something someone probably wrote once and the grievance-mongers on the right has decided defines liberal thought.
                    Following that up with 'lesser black women', can be easily read charitably, and indeed I think that's what he means. But after the 'leftist wokester' tone of intersectional hierarchy, it's a bad look.

                    And then 'have an asterisk?' Fuck you, Shapiro.

                    1. Intersectional hierarchy is like something someone probably wrote once

                      If only there was some way of investigating your bullshit claim...er, I mean...hypothesis...

                      https://lmgtfy.app/?q=%22Intersectional+hierarchy%22+-shapiro

            2. That’s totally fair, and in fact after I posted I realized that you might in fact disagree with Ilya’s (let’s call it subjective) assessment about who is more qualified. I suppose my wording wasn’t specific enough.

              I think you’ll agree that there’s nothing controversial about Ilya’s opinion in regards to who is more qualified, and no one would be up in arms about the substance of that aspect of the tweet.

              The controversial part (going by the charitable, and let’s face it, what we KNOW to be the intended meaning of his tweet) is only the abstract concept that a lesser qualified black applicant should not be chosen over a more qualified applicant on the basis of sex and race.

              I believe that’s the crux of his opinion. He’s not even saying that diversity on the court is a totally unreasonable consideration. I believe he just thinks such specific characteristics as being black and female should not trump every other reasonable consideration.

              Do you agree with that? And if not, do you think such an opinion is reprehensible?

              1. Again, I don't agree. At a minimum, it demonstrate such hubris that he's bound to get into trouble.

                Saying that Sri Srinivasan is "objectively best pick for Biden" is kind of weird, but okay. The trouble happens when he then goes on to pre-slam any possible black woman.

                I'm not familiar with the entire work of every judge out there, but I have the humility to know what I don't know. If he's going to slam a pick, he should probably at least wait until the pick is made. Because otherwise, it looks a lot like he's saying that there is no black woman who could possible be deserving of the choice.

                Again, it's twitter. People say stupid stuff all the time. I'm sure he thought it was a clever comment.

                But it wasn't. There are many great black female jurists. For him to say that (both the "lesser" and the "asterisk" comments) is to do the exact same thing that he was trying, inartfully, to accuse Biden of doing- judging a bunch of people he had no knowledge of by their race and gender.

                1. I don’t see how it’s hubris. Perhaps naivety. Hubris implies that he could knowingly get away with something. I don’t think the bad faith interpretation, or at best the possibly reasonable interpretation if you were totally ignorant of his opinions, even occurred to him. He didn’t think about it and dismiss it because no one would challenge the great and powerful Ilya.

                  And I am not really trying to win an argument here. I totally agree that, given the world we live in, the tweet was terrible. But I honestly don’t believe you would really have an ignorant or bad faith interpretation of his tweet. And I don’t think any faculty member in the Georgetown law school would really make such an interpretation either. I think they are operating out of self interest rather than honesty. And I suppose that’s totally rational.

                  You know he didn’t mean that no black female judge could possibly be as qualified as other choices based on race and gender. I’m sorry, but I’m almost positive you know that Ilya wasn’t saying that. And that he’s not lying now. In fact, I didn’t even read his clarification because I think it’s so unlikely that I misinterpreted him to begin with.

                  He said that a more qualified judge should be selected over a lesser… fill in any other adjectives after that and before the word judge, and it’s simply true. Unless you think those other adjectives trump being more qualified. Which may in fact be a reasonable position. At least politically for Biden.

                  You think Ilya wouldn’t personally prefer Janice Rodgers Brown over anyone that Biden would consider?

                  Again, I get your disagreement about the qualifications of the specific judges involved. That disagreement either way is probably not controversial to anybody. It’s his other, more general statement about qualifications trumping really specific diversity criteria that is in any way controversial. But that’s what he meant and I’m sure you know it.

                  Hell, in a practical sense I disagree with Ilya about what Biden SHOULD do, from a rational self interest point of view. He should go through with his promise for several political reasons. A slightly more qualified judge who doesn’t fit his promised goal only has downside for Biden. If his black female judge gets through, profit. If she’s blocked by those racist and sexist Republicans, profit.

                  But can you at least admit that your interpretation of Ilya’s point of view is the same as mine? Or do you actually think he’s a racist or sexist or both, and he thinks black female judges are all lesser by default?

                  I’m sorry, but you’re not one of the trolls here. And I’m not one either that you need to fight to the death. I respect your opinions here, and I get why you might respond the way you do to certain trollish commentators.

                  Forgive me if I’m actually misinterpreting your statements. I just can’t believe you’re really buying in to the worst possible interpretation of Ilya’s position, given everything you know about him.

                2. Michael Jordan was better than any white player who he played against. I can't even name all the white players he played against, that doesn't phase me in making this assertion. Am I racist for saying this? I don't think so. Especially if someone had said, "who's the best basketball player ever? Oh, but only white players under consideration," I'd sure as hell hope someone would point out that Jordan was better than them. And I'd bet Shapiro actually knows all the high ranking judges who were likely to be under consideration, so he can be even more confident than I can be that there wasn't some mystery white guy in the NBA in the 90s that was better than Jordan. I don't think even the subjectivity of who the best player ever was, if someone thinks it was Larry Bird, would lead any sane person to view my claim about Jordan as racist.

            3. 1. Of course there is a best candidate. That's just silly.

              2. The DC CoA does a lot of the same type of work the SCOTUS does. It's as close to the SCOTUS type of work as you can get. It's almost like...training.

              1. Really leaning into that armchair thing, huh?

        2. "just keep lying"

          Like you just did?

          You don't apologize because people sense weakness and keep pushing. Not "keep lying" involved.

          Delete the tweet, keep quiet and it might blow over. Get letters of support and keep saying sorry, you are already dead.

          1. Where did loki lie?

            1. Where did I say "just keep lying"?

              1. You didn’t. But you have a track record of endorsing lying for political advantage and don’t seem to have a moral problem with it if it’s to your benefit.

                1. I have a track record of saying politicians lie to get advantage.

                  An objective truth.

                  1. And you like it when they do it in your favor, yes?

                    1. No, but I suppose it's more tolerable.

                      "He may be a son of a bitch, but he's our son of a bitch" -FDR

                    2. He's never said anything about liking it when politicians lie. (I can't tell what "in his favor" is even supposed to mean, btw.) Your implication otherwise is itself a lie.

          2. I don’t know if you’re right or wrong about strategy.

            But in this case I’m sure Ilya wanted to clarify his meaning. He is telling the truth and it’s in his interest for people to at least have an accurate understanding of his opinion, whether they choose to punish him for it or not.

            He would have clarified even if his job wasn’t on the line once someone pointed out to him that his wording could be misinterpreted.

            1. He is telling the truth and it’s in his interest for people to at least have an accurate understanding of his opinion

              If you are dealing with bad faith, continued explanation does you no good. It really doesn't matter what you say. The folks with an above room temperature IQ have already gotten your point. No amount of explanation is going to convince the mouth breathing partizans who are more interested in the narrative around what you said than what you actually say. Treating them as if they were actually dealing in good faith merely muddies the waters.

    3. If I want to help someone not be fired for a controversy involving race, I definitely want the support of someone who tweeted out her thanks to Amy Wax within the last month.

      1. I was just shocked that Amy Wax hadn't signed the letter yet, given some of the names.

        1. Since it’s still soliciting signatures, I assume they made sure Amy Wax’s emails go right to spam.

        2. " I was just shocked that Amy Wax hadn't signed the letter yet, given some of the names. "

          Maybe an Asian, Black, or Muslim slipped in there?

      2. Two degrees of guilt by association is enough now? You realize that if we rebuke every progressive who ever said something nice about a leftist who said something nice about Stalin, Mao, Lenin (or just expressed hatred of white people or men), there'd be none left. But I guess if you're eager enough to denounce someone, 12 degrees of separation wouldn't be too many.

        1. If you’re being accused of being racist; would you want a letter in support of you to be signed by someone who appreciates the support of a noted racist? I don’t think so.

          1. It's the law of contagion. Once you accuse person A of being a racist, you can use the fact that person B associates with person A, or has something nice to say about them, as 'proof' person B is a racist.

            The goal here is to force people to shun anybody you accuse.

            And the bestest part is you never have to prove the original accusation. For the left, accusations are their own proof.

    4. It is striking that supporters of Shapiro could not sign a forthright letter which merely quoted his remark. To justify their support, they felt need to substitute a re-write, saying,

      "[Sri Srinivasan] doesn't fit into the latest intersectionality hierarchy so we'll get [a less-qualified] black woman" is presumably what Shapiro meant to say.

      "Presumably," indeed. With freedom to put into Shapiro's mouth whatever exculpatory language they thought would serve, why couldn't his supporters even bring themselves to say, "so we'll get [a less-qualified] applicant"?

      1. No edit function. "[a less-qualified] nominee"

    5. Here is a great point from a prominent woman of color:

      "Biden chose Harris as his VP because of the color of her skin and sex—not qualification. She’s been a disaster. Now he promises to choose Supreme Court nominee on the same  criteria.  Identity politics is destroying our country."
      -Tulsi Gabbard

      1. Affirmative Action in which quotes you cherry pick, eh?

        1. When you are right you are right.

          I would have noticed and approved the quote no matter who said it. But others might easily dismiss it if it came from a white male. That's just the world we live in.

          Of course we also live in a world where minorities that dissent from group think are marginalized by calling them Russian assets, in this case, or uncle Tom's.

          1. I'd say affirmative action generally is about acknowledging the world we live in.

            Some assholes calling Thomas an uncle tom are not really marginalizing him.
            OTOH, being someone of color who criticizes Dems is a quick way to be approvingly quoted and interviewed etc. by the right, as your comment exemplifies.
            AA isn't about tokenism, but all too often on the right that's all they seek

  2. Letter sure worked!

    As did his groveling apologies.

    As always, never apologize, its a sign of weakness.

    1. I'm not sure why any normal person would want to work as a professor nowadays. I'm sure the flexibility and the summers off are nice, but the job appears to come with a lot of baggage.

      1. That's your confirmation bias talking.

        I know a number of youngish law profs from my law school, and they are enjoying their life, except for the never getting tenure due to budget cuts part.

        1. Well, sure, I guess it's not a bad life so long as you're left wing to begin with; There's no sense of oppression in obeying an orthodoxy you belong to.

          1. Shockingly, not all my friends are left wing, or into woke culture. A number of them are pretty nonpolitical.

            1. So, they're either part of the orthodoxy, or silent. None of them are actually in opposition to it? And in a 50-50 nation this doesn't raise any alarm bells with you?

              Like any one party state: You don't have to belong to the ruling party, but if you don't, you have to stay silent about politics.

              1. any normal person is what TwelveInchPianist said. I've cleared that low bar.

                Unless you think all normal people are Republicans who can't keep quiet about it.

                I agree with you that academia is too liberal. But there are conservatives in academia who get along fine. You just don't hear about them.

                1. "You just don't hear about them."

                  Or from them, which is exactly the problem, one could suppose.

                  1. I don't think 'from them' is established.

                    1. That is because they keep their mouth shut about hot buttons

                    2. There are plenty of prominent and published conservative academics, Don.

                      Not as many as there should be, perhaps, but don't pretend it's a shutout.

                  2. You beat me to the punch.

                2. Sarcastr0 knows that his non-left-wing friends who are youngish law profs like their jobs. He also knows that they are pretty apolitical. He knows because they told him:

                  Sarcastr0: "Why don't you ever talk politics?"
                  Friend: "I like my job."

                  1. Nice fan fiction.

        2. Confirmation bias? How so?

          1. You here the stories of Profs having it rough, and assume that's indicative of all profs. But you only hear about the examples that make the news, which confirm your biases, but are hardly a random sample.

            1. That's not confirmation bias. It sounds like some sort of selection bias. You just grafted in "which confirm your biases" to make it sound like confirmation bias.

              1. Yeah, I did describe sample bias.

                But also, if you're only looking for profs being miserable, you're going to notice profs being miserable.

                Confirmation bias AND sample bias.

                Point is, you're wrong about being a prof being a crap job. Not for me, but fine for many.

                1. The sample may be biased. That is difficult to tell. I am on a large physics faculty; I have never heard what folks here would call a conservative comment. People are selective about what they say. For one harmony on a faculty (by which I mean the absence of fights) is generally a very positive situation worth preserving.

                  1. Again, the thesis I'm replying to is: I'm not sure why any normal person would want to work as a professor nowadays. I'm sure the flexibility and the summers off are nice, but the job appears to come with a lot of baggage.

                    It says nothing about conservatives only.

            2. Plenty of communists did fine in the film industry in the 50s, we just never heard about them... probably because they kept pretty quiet.

              1. If you want to make that kind of comparison, you should probably back it up.

                There is no HUAC in academia. Especially once you get tenure.

                1. There absolutely is, and this is an example of it in operation.

                  1. You can't just ignore the difference between a single, federal, centralized government committee and administrations of varying behavior across many many institutions, even if you love the narrative.

                    1. " a single, federal, centralized government committee "

                      What we call 'McCarthyism' was a lot more distributed than HUAC. If you've never read it, John Henry Faulk's "Fear on Trial" is a great read (another source is a chapter in one of Louis Nizer's books ... Nizer was his lawyer). Faulk's persecution didn't involve the government ... it involved companies fearful of getting cancelled if they supported him.

                      "If you want to make that kind of comparison, you should probably back it up."

                      Faulk also has some insights on that. It verges on common knowledge that people in Hollywood were working under false names and so on. In other shocking news, there were closeted gays acting!

                    2. But it was lead by HUAC. Don't underestimate the government as teacher.

                      Still, I thank you for the recommend. I've read about HUAC mostly via other sources (i.e. Oppenheimer).

                    3. "But it was lead by HUAC."

                      Faulk's persecution was a for profit enterprise run by a grocer in Syracuse, NY, which started the year McCarthy died. Mr. Grocer was running a nice little - well, actually not so little - media blacklisting extortion racket, and Faulk got in trouble for exposing it.

                      It's a fascinating bit of history, but it certainly is not in any way an example of "a single, federal, centralized government committee".

        3. EV had a post, not long ago, that recommended lawyers not adjunct for the extra cash, for reasons just such as this tempest in a teapot.

    2. Let's check the list:

      (1) Never apologize.

      (2) Never hire a clinger for a mainstream, strong faculty.

  3. I'm always interested in lines like this: "pending an investigation into whether he violated our policies and expectations." Call it what it is, a determination of whether action by GULC is warranted, and what the appropriate action is. There's no "investigation." The Dean already says the tweets are antithetical to what they do there. Ilya isn't denying he sent them.

    1. "Investigate" in this context always means one of two things:

      1) Buy time to see if the controversy dies down and they can take no meaningful action.

      2) Harass the person enough that he'll agree to walk away so they don't have to take meaningful action.

      1. That's pretty accurate, in my experience DMN.

        Hopefully 1. It's twitter- it should die down quickly enough. Unless they keep getting letters by ... well, it's an eclectic cast so far.

        1. He should be fired for simply being on Twitter. You have to a special level of stupid to Tweet terribly much.

          And given how charitable Shapiro is to people he disagrees with, that he is getting this treatment is karma.

          1. Does Shapiro have a record of calling for people he disagrees with to be fired for their tweets? If so, can you offer some examples? (This is a serious question - there's been plenty of hypocrisy on display in similar situations, and I'd be interested to know if that's the case here.)

          2. "...given how charitable Shapiro is to people he disagrees with, that he is getting this treatment is karma."

            Isn't Srinivasan someone Shapiro disagrees with?

            1. Didn't sound like it, reading the tweet.

      2. Or both, which is how it usually works.

      3. You nailed it, David. I believe we are looking at #2, since the 'full throated defense' of Shapiro is so....tepid.

        (going for Judge Selya vocab points using 'tepid' - I hope John Ross is paying attention...ha, ha)

    2. Maybe determining intent is a factor in this investigation. We all know that Ilya’s phrasing was inelegant and could possibly be misinterpreted. But the way he did phrase it could easily be interpreted the way he did mean it. In fact, everyone who has read Ilya’s writing should obviously assume he meant what he says he meant. The Dean knows it. The faculty knows it. And the rest of us know it.

      But I’d really like to find out if intention matters at all when it comes to violating whatever policy he might have violated. But let’s assume intention doesn’t trump an action that’s a clear violation of something or other. Could charitable or uncharitable interpretation of his actual tweet be a factor?

      Is the policy: any statement that CAN be interpreted to be racist WILL be interpreted to be racist, even if the more reasonable interpretation is not racist?

      1. " everyone who has read Ilya’s writing should obviously assume he meant what he says he meant. "

        That he may not be bigoted toward Black women, because all we can really know is that he was just trying to own the libs and entertain fellow clingers with antisocial bluster?

        1. I really don’t think owning the libs is Ilya’s thing.

          We know Ilya pretty well from his posts here. He’s even the one conspirator you don’t call a clinger.

          I think you probably believe him to be sincere just as I do. And I don’t think you want him fired either.

          You keep talking about this liberal/libertarian alliance. Well be a good liberal ally then. Give the libertarian the benefit of the doubt.

          1. Different Ilya. Shapiro is a lot more partisan than Somin.

            1. And Kuryakin is more that both

  4. Worth considering how Georgetown responded when Georgetown Prof. C. Fair's tweeted during the Kavanaugh hearing:

    "Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement.

    All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes."

    Unsurprisingly, Georgetown did not conduct any investigations, put her on administrative leave, or even criticize her tweets.

    https://bariweiss.substack.com/p/on-decency-and-double-standards-at

    1. Hmmm...sounds like a possible case of racial discrimination.

      Can you imagine a professor getting away with talking about castrating the corpses of black men and feeding them to swine?

      1. "Man makes dumb tweet, will probably be fired, friends upset, film at eleven." I mean, so what? People get canned for saying dumb things every day. Shapiro's civil rights are intact, he is at liberty to seek employment elsewhere, what more can a libertarian ask for?

        1. The tweet alleged in the post above mine was supposedly by a different professor.

    2. Clearly, as loki will agree, the most reasonable interprestation of this tweet is that he is saying 'all white men (them) deserve miserable deaths and to be castrated...' The syntactic ambiguity here actually lends itself to racist (genocidal) interpretation far moreso than Shapiro's tweet. So if what Shapiro said is racist, then replacement theory confirmed?

  5. Shapiro should be immediately reinstated until an investigation is completed. Anybody who cannot understand the true meaning of his tweet should leave the school themselves until they grow the fuck up.

  6. I'm pleased to see Nadine Strossen's name on this list. For those who may not immediately recognize her name, she was president of the ACLU from 1991 to 2008.

    1. She's not totally lost yet, but she wasn't innocent in the ACLU's decline, either. It was on her watch that the ACLU officially declared that 'civil liberties' were anything they felt like defending, and nothing they didn't, and never mind what the Constitution might say about the matter.

  7. I'm embarrassed to say that I graduated from Georgetown Law.

    1. Are you self-aware enough to recognize Georgetown has similar regrets, clinger?

  8. "an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment"

    OK, the investigating committee is now in session.

    First, did Shapiro make that tweet?

    Yes, we have his apology, which indicates the tweet was his.

    Second, was the tweet "antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity"?

    Yes, the Dean already said so.

    OK, he's guilty, what's for lunch?

  9. Can you get Jacob Levy to sign the letter? He’s a serious and thoughtful scholar. Or some Amars or something. Jeeze.

    The proportion of clowns to not-clowns on this letter is too high. Gale Heriot signed. She thanked Amy Wax for a positive review of her book AFTER the Glenn Lourery interview came out. That is NOT going to help Ilya at all. Seriously.

    1. Basically nothing is going to help him. It's an investigation with a predetermined conclusion.

      1. Perhaps. But sending a letter from the biggest clowns in legal academia is certainly not going to help.

      2. You think he's doomed, Brett?

        1. Well, yeah, in the sense that the 'investigation' isn't going to clear him, if only in that sense. It's possible he can keep his job by vigorous enough groveling, and submitting to an official struggle session.

          I really, really doubt they're going to admit that there wasn't anything wrong with the tweet except that it was susceptible to being read wrong if you were determined to do so.

          1. I don't think that's at all clear.

            1. I think it’s clear that at least part of what Brett is saying is true. They’ll never say that the tweet wasn’t problematic. The Dean already said that it is.

              I don’t really know how these investigations usually go, or what the odds are of Ilya keeping his job. But I do think there are interesting questions to answer from the school’s point of view, but I don’t know how interested they are in really answering those questions publicly.

              I think we’ve learned that intent itself is never a case ender in these situations. To what degree it’s considered at all would be interesting to learn.

              But there’s an extra twist to this. It’s not like he used the N-word in a quote or something, without intending to be racist. We already know that’s a hanging offense. What’s different about Ilya’s tweet is that it can VERY reasonably be interpreted to mean exactly what Ilya says he meant. In fact I’m quite sure everyone involved in the investigation interpreted it correctly.

              The question is, is it a firing offense if anyone could reasonably misinterpret Ilya’s statement and be emotionally harmed by it.

              I really hope the university answers this question clearly for future precedent.

              Now, my own perhaps cynical opinion is that the people screaming the loudest about this were not harmed at all. In fact they get clout and virtue benefits for denouncing the heretic. You gotta believe that heretics emotionally harm someone, so they really are doing God’s work.

              1. They’ll never say that the tweet wasn’t problematic

                What kind of standard is that?!

                1. The tweet was clear enough that it could only be interpreted as racist if you interpreted it with actual malice. It's 'problematic' in the sense that he didn't phrase it so as to make the exercise of that malice even more absurd, which is a pretty attenuated kind of "problematic".

                  But they're not going to admit it wasn't 'problematic' in any strong sense, because they share that malice.

                  1. You don't investigate the problematicness of a tweet, you investigate a person.

                    This is a new goalpost with such an incoherent standard it's hard to argue it isn't a backpeddal.

                    The tweet was clear enough that it could only be interpreted as racist if you interpreted it with actual malice
                    Also makes no sense. Actual malice is not an interpretive standard. Also, you are very much not an objective arbiter here.

          2. That would be a shame. No one should have to debase themselves for stating their opinion...much less lose their jobs as well.

        2. Sarcastr0, Professor Shapiro is toast. It is all over but for the shouting.

          1. We'll see. I've seen it go both ways, and twitter already seems to have moved on.

            1. I think both Twitter and G-Town were ready to move on and then the defenses came in and blew it up again.

              1. He is permanently damaged goods (only the degree is in question). You might not see eye to eye with Bob from Ohio on a lot of things, but he is right that Shapiro never should have deleted the tweet and never should have apologized. Doing those things was a mistake.

                If Shapiro wants to come through this without further loss, he needs to do much better in crisis management.

                1. He's damaged goods on both ends.

                  He's VP of the Cato Institute, for goodness sakes! A Libertarian think tank! And he thinks being a stout progressive is a point in favor of a judge??? Seriously?

                  There's some overlap between liberalism and libertarianism. Some.

                  Between progressivism and libertarianism? Not nearly as much.

                  1. Fuck sake, Cato folks are all over academia. This isn't good, but you spin everything into a vast conspiracy.

      3. " Basically nothing is going to help him. It's an investigation with a predetermined conclusion. "

        There's always South Texas College Of Law Houston!

        (And many dozens of conservative campuses eager to hire a right-winger who belittles Black women and strives to own the libs.)

    2. "She thanked Amy Wax for a positive review of her book AFTER the Glenn Lourery interview came out."

      And I have affidavits showing that she was at a party where Communists, negroes and marihuana were present.

      1. WTF are you talking about? Heriot tweeted that out publicly for people to see. She apparently doesn’t think racism against Asians is such a big deal because she thought positively associating herself with a known racist was okay!

        1. Communist negro *jazz musicians* smoking marihuana!

          1. Again: she tweeted out she thanks to Amy Wax. If you unconditionally thank someone for endorsing your views it’s a fair assumption you tolerate theirs or possibly share them! If I unconditionally thanked Angela Davis for saying my work was amazing I think you’d be right to infer some things about my beliefs!

            1. Well, she's two out of four - if she smokes weed it would be three out of four - but does she play jazz?

              1. WTF even are you talking about. I don’t get this troll.

                1. It sounds like a parody of certain types of Cold War paranoia, only with wokeness - "he's supported by a petition signed by a woman who got a a good review from a bad person, and she thanked the bad person for the good review."

                  1. Paranoia? Again WTF are you talking about. Nothing about this involves "paranoia."

                    This is really quite a simple issue:

                    If you are embroiled in a controversy involving your comments about race, it doesn't help you if one of your supporters has the support of a well known racist.

                    How is this not clear?

                    And again, this cold war paranoia comparison makes no sense: I'm talking about things that people do and say in public and what they proudly attach their names too. That obviously is not the same.

                    1. So what did Herriot write, what did Wax say about what Herriot wrote, and what did Herriot say about what Wax said about what Herriot wrote?

                    2. Prof. Heriot co-edited a collection of critical essays about affirmative action called A Dubious Expediency. Prof. Wax wrote a positive review of the book in the Law and Liberty blog. (You may recall this blog as the topic of a different recent post on this site.) Prof. Heriot then tweeted a link to the review, adding "A review of my book! Thank you, Amy Wax!"

                    3. Unclean! Unclean! Let me change into my cheap suit so that I can rend my garments.

                    4. Amy Wax reviewed Gail Heriot's collected essays on why affirmative action is bad. Whatever, a lot of non-racists think AA is unconstitutional/bad policy. But they typically don't say this:

                      "As Murray shows, the unpleasant reality is that, at least as things currently stand, groups are not equal on average in intellectual potential (as measured by IQ tests), academic ability (as reflected by achievement tests), and competence (as documented in empirical measures of job performance). What this means on the ground is that, without racial preferences, equal outcomes by race and the progressive ideal of racial “equity” in American society is not an achievable goal and will not be any time soon. More specifically, abandoning racial preferences and returning to colorblind, meritocratic standards will lead to significantly fewer low-performing minorities earning places in demanding professions and positions of authority.

                      Are affirmative action opponents ready, willing, and able to defend this situation without apology? Can they stomach the formidable task of justifying the group inequalities that will inevitably arise from applying colorblind, impartial principles? Are they prepared to publicly repudiate the expectation of proportionate group representation both as a legal touchstone and a practical goal? These are daunting challenges in the current political climate."

                      https://lawliberty.org/book-review/affirmative-action-past-present-and-future/

                      Literally citing Charles Murray for the "some racial groups are dumb" argument. Pure racism.

                      So then what does Heriot do when she sees this review? Ignore it? Acknowledge it but push back on the racism of the author or the racism in the piece itself? Nope. She simply tweets out:

                      https://twitter.com/GailHeriot/status/1478446738952253441

                      And again, this is after Wax was involved in the whole: we need fewer Asians because they don't have liberty bearing in their hearts thing.

                      Not someone who is going to help Ilya get back in Georgetown's good graces!

                    5. To be fair, Randall Kennedy's signature didn't do much to help, either.

                    6. Not that deans should be ultra-sensitive to organized petition drives, except as an excuse to say they're taking heat from both sides.

                    7. "Amy Wax reviewed Gail Heriot's collected essays on why affirmative action is bad. Whatever, a lot of non-racists think AA is unconstitutional/bad policy. But they typically don't say this:"

                      I get that the statements are, as Cal says, unclean. Which means that, from a certain ideological perspective, that they might be true is unthinkable, even entertaining it as a possibility marks one out as irredeemably evil.

                      As such, for somebody coming from that perspective, simply to repeat them is to identify anybody associated with them as untouchable, also unclean.

                      But, what is that to anybody who isn't a member of your religion? To somebody not a member of that religion, they're simply factual propositions, which may or may not be true, and one asks for evidence, rather than recoiling in disgust.

                      It's true that a lot of people who aren't believers in your religion have gotten tired of the recoiling, the cries of "Unclean!", and, more to the point, the secular penalties members of your religion feel entitled to dish out. And so avoid talking about this topic. Doesn't mean you persuaded us, you just intimidated a lot of us.

                      Which I regret, because being intimidated into silence doesn't make any of those propositions wrong. And, what indeed do we do, if we succeed in abolishing racial preferences, and racial groups don't magically end up similarly situated?

                    8. Wax: "As Murray shows, the unpleasant reality is that, at least as things currently stand, groups are not equal on average in intellectual potential (as measured by IQ tests), academic ability (as reflected by achievement tests), and competence (as documented in empirical measures of job performance)."

                      LTG: "Literally citing Charles Murray for the "some racial groups are dumb" argument. Pure racism."

                      Me: If it's true AND is "pure racism" then pure racism is true. Or one of the propositions is false.

        2. So every progressive who said something favorable about Chomsky should be understood as implicitly agreeing with his Cambodian genocide denialism? Oh, rather, every progressive who has been defended (something outside of their choice) by someone who said something favorable about Chomsky? I really hope you people are someday subjected to the standards you impose on others.

          1. If he had any standards he wouldn't so cavalierly accuse Wax or Shapiro of racism.

            1. Wax is a racist. That's not cavalier. That's a considered opinion based on the things she has said over the years.

    3. I tend to read petitions (in the few times I do) for only the cream, not the chaff, to mix a metaphor.

      A bunch of partisan tools signing on is just white noise. Will Baude signing on is the thing I'm paying attention to.

      1. Right. I hope Georgetown pays attention to Will too. I’m honestly starting to feel bad for Ilya because the clown-show is really stepping up in his defense.

        I would not want Dan “Haha isn’t it funny how Biden’s good dog died and the bad one is alive just like his good son died and the bad one is still alive” McLaughlin writing articles to support me.

        1. You’re starting to feel bad for Ilya based on the understandably large set of law professors who agree he shouldn’t be fired? But if only people you respected signed the letter your sympathy would have never have been triggered?

          Or as a practicable matter do you believe that the addition of names you don’t respect will end up being the deciding factor in Ilya’s fate?

          1. I'm feeling bad because he has some reprehensible people speaking out in his defense. Like Dan McLaughlin. That sucks for Ilya.

            1. I understand that. I’m sure there are a lot of reprehensible people who would side with you about a great many things.

              I honestly have no idea how effective these kinds of letters are or whether their effectiveness is diminished by the least respected signers bringing the average down. My intuition tells me that these extra signatures will not be the straw that breaks Ilya’s back. If he loses his job, it almost certainly won’t be because a couple of deplorables signed onto the letter.

              I know you’re kind of being facetious about starting to feel sympathy for Ilya because of some of his defenders. You probably don’t think their support will effect any of this one way or the other.

              I’m also pretty sure that while you can justifiably criticize Ilya’s phrasing, and perhaps lack of practical sense, you know what his actual opinion is and I’m guessing you don’t think that he deserves to be going through all this.

            2. No, you just can't bring yourself to blame his leftist bosses for firing him, which you know is going to happen, so you're planning your excuse: "actually, it's those letter-signers' fault, not my co-religionist McCarthyists."

        2. I would not want Dan “Haha isn’t it funny how Biden’s good dog died and the bad one is alive just like his good son died and the bad one is still alive” McLaughlin writing articles to support me.

          Impressive - I might be able to pretend to be offended by that tweet if I really put some effort into it, but it wouldn't be easy.

          1. Major was sent upstate to a farm where he can run around and play. He's dead too.

          2. Do you lack a conscience or something? Because that's kind of what you're admitting to if you don't think that was offensive in any way. It was an extremely gross tweet and article. Extremely.

            Christ, I thought you were one of the more normal ones. Welp, guess it's down to XY for conservatives with a soul.

            1. I took McLaughlin at his word and found the article to be a genuinely moving examination of the small-scale tragedy of losing a dog and the enormity of losing your children, and a sympathetic exploration of why Biden might have the relationship he does with a boorish son who seems out to embarrass him at every turn. There are plenty of right-wing trolls whose MO is owning the libs and making snowflakes cry, and McLaughlin can get pretty close to that at times, but I don't see this as an example. If you decide to write me off as devoid of conscience or a soul (or that I'm a conservative!) as a result, so be it.

              1. You’re way too credulous and charitable then. Getting it into your head to write articles comparing someone’s dead child to their dead dog for the purpose of weighing the personalities of the dead child and alive child is super gross in every conceivable way. You just don’t do that.

          3. I haven't seen the tweet, but dunking on Biden for Beaux dying and Hunter being an addict is pretty assholish.

            1. I didn't read it, or the article it summarized as a dunk, nor do I see how anyone would if they weren't trying to be offended.

              1. Thanks for that link. There is a lot of tragedy in life.

  10. Of course he shouldn't be fired. This roasting is quite good enough.

    1. He should quit, he's already proven he is not a wartime consigliore in the legal wars.

      1. Oh, and Georgetown should lose it's endowment!

        Your hostility is boring.

        1. Its only $1.5 billion, my floor is 5.

          1. Yes, getting more algorithmic will help with your knee-jerk issue.

            1. Better than thinking public letters and such will change behavior.

              Money talks.

              1. There isn't enough money in the world to prevent right-wingers from being defeated in the culture war.

              2. That is true Bob from Ohio: Money talks.

                Still not a fan of taxing endowments.

    2. As long has he gets raked over the coals for forgetting that affirmative action is an Orthodox Opinion not to be challenged, you're fine with him keeping his job. How open-minded.

      1. Free speech does not mean speech without consequences.

        Showing your ass and getting mocked is part of free speech. The mocker is, in fact, itself free speech.

        Your comment is actually pretty censorious of viewpoints you don't like.

  11. "[Sri Srinivasan] doesn't fit into the latest intersectionality hierarchy so we'll get [a less-qualified] black woman" is presumably what Shapiro meant to say.

    Most here would likely presume that, but I think this reformulation is inadequate because it doesn't make his presumed intention absolutely clear for those who have reflexively reacted to "lesser black woman." I'd suggest:

    "Sri Srinvasan is the most qualified progressive candidate. Because Biden is limiting his field to black women and thus excluding Judge Srinvasan, we will get a nominee who is less qualified than him."

  12. You know, Sri Srinvasan better be a really good judge to justify all this hullaballoo on his behalf.

    He better be a combination of legendarily-just judges like Solomon, Bao Zheng, and Joseph Wapner.

    1. Maybe his ruling on Ilya’s fate would be to cut him in two, fire half of him and let the other half retain his position at the University. That would probably get Georgetown to endorse him.

  13. Shapiro should not be fired or disciplined for expressing his gratuitous opinion. But Biden was clear during the primaries about his intention to nominate a black woman to SCOTUS. That choice was baked into the electoral cake when we chose him as president. The candidates who are said to be under consideration are well qualified. What's the big deal?

    1. What's the big deal?

      Would it be a big deal if he said he'd only consider white males?

    2. "What's the big deal?"

      Ask Georgetown.

  14. Lord, what a crashing bore this topic is. It's just so STUPID.

    1. I agree.

      Shapiro may have merely been "inartful." Or maybe he let something slip. I sort of suspect he was actually trying to be snarky, and stepped on his dick, when what he (possibly) wanted to say was something like,

      "It's unfortunate that Biden's determination to nominate a Black woman eliminates Srivinasan from consideration, since I think he would be the best choice."

      Regardless, the idea of disciplining him over this is really a bad one.

      1. He said what he meant. Wasn’t good. Shouldn’t be fired over it

        1. Pretty much, though I do suspect he was trying to be provocative and screwed up.

          1. I mean then it’s a rule of goats thing.

        2. He sad what he meant. Wasn't particularly bad, either, though some people will insist on misreading it.

          1. Weren’t you just defending Amy Wax, Gail Heriot, and Charles Murray upthread? I don’t think you’re a reliable judge of what’s “bad” in this situation.

            1. Well, I disagree with you, certainly.

            2. Nothing much wrong with Amy Wax, Gail Heriot, or Charles Murray except a certain squishiness. You, on the other hand, are a jackass.

        3. " He said what he meant. Wasn’t good. Shouldn’t be fired over it "

          Also shouldn't have been hired by a mainstream school.

  15. Anyone who argues that modern universities are not simply intellectual reform gulags, thought reform prisons are either stupid or just plain lying....

    1. Whining, resigned-to-defeat, disaffected Jimmy the Dane is my favorite Jimmy the Dane.

  16. Would it have made a difference if Shapiro originally wrote that we would get a lesser justice (*) if only any given gender-race combination was considered, including (with emphasis) white men (and not mentioning black women).

    (*) Even without considering the positive aspects of diversity or remedying on-going discrimination, I think there is no way to know if Srinivasan would make a greater justice. As such, the asterisk comment is particularly offensive.

    1. Nothing offensive about simple fact. Thomas deserved an asterisk, though he has worked it off.

  17. What's fascinating is that the President of the United States announced that he would make an important appointment on the basis of the appointee's race (and sex), and a bunch of folks are claiming that a person who criticized that action is the racist. Really.

    1. He* who controls the language controls the masses.

      *(Or she.)

      1. * (or zhe) 🙂

  18. "I have heard the pain and outrage of so many at Georgetown Law, and particularly from our Black female students,"

    The everyone gets a medal; everyone is a winner culture has fostered and generation of weak people. My god, someone says something you don't agree with and it's a psychological disaster. Try being a Christian and see how much abuse you get.

    1. Try being a Christian and see how much abuse you get.

      Oh shut up. Whining about how much "abuse" you get for being a Christian is complete idiocy.

  19. I doubt he could state his opinion in a way that wouldn't get him into some trouble at least. Most of the people who want him fired make no distinction between 1) opposition to picking a judge because they're black and female and 2) opposition to picking black female judges. However 'artfully' he tried to put it, some student or faculty would've probably complained for the same reason. The faculty probably wanted to be rid of him anyway because of his politics, so he was likely on borrowed time no matter what.

  20. The clingers are circling their wagons . . . fittingly enough, around bigots.

  21. The practical lesson for strong schools is to refrain from associating voluntarily with our vestigial clingers. There are plenty of schools that prefer right-wingers, especially with a side of superstition, often to a point of excluding reasoning, modern candidates.

    Let the conservative-controlled campuses take and have the movement conservatives.

  22. Did any of the professors who signed this letter sign a similar letter when that professor lost her job at Wheaton for saying something nice about Muslims?

    Did any of the professors who signed this letter sign a similar letter with respect to anyone who wasn't a "conservative in the movement," as at least one of the signers once put it in writing?

    Clingers gonna cling.

  23. That letter provides a handy list of candidates every conservative-controlled (censorship-shackled, nonsense-teaching, avidly discriminating, dogma-enforcing, fourth-tier or unranked) campus should covet and every strong, mainstream school should avoid.

  24. Prof. Volokh's name is listed first (against the grain of alphabetical order), yet Prof. Baude was selected to contribute this one to the Volokh Conspiracy.

    Maybe Prof. Blackman could parse that oddity for us.

    (Clingers tend to stick together and circle wagons, though, so any such analysis would be quite a change.)

  25. Shapiro's tweet was poorly phrased regardless of context, and it was silly in its premise that there is an objectively best choice. But the real problem he has is that he was dumb enough to forget that he had just been hired by Georgetown. The public expectations and professional standards for a university are different than those in his prior role.

    1. That has been the crux of my criticism, David. He is an exec. Execs don't make those kinds of mistakes and stay execs. That is just the way of the world.

  26. The letter concedes that Shapiro made a mistake. So everyone who signs is part of the witch hunt.

  27. The letter is correct on the important principles. But it should be acknowledged that the tweet really was bad. I'm sure he meant "lesser because less qualified", and not "lesser because black" -- but how could he not sense that it would sound like the latter? Law scholars have a keen sense for language. Interestingly, foreign-born ones like Prof. Shapiro (and myself) can sometimes sense shades of meaning that native speakers miss. So, no, not a firing offense (because Twitter is stream-of-consciousness with more room for error, and because a firing would look like it's for the (reasonable) intended message and not the unintended one) -- but not a trivial/insignificant misstep, either.

  28. There should be a general mandate to investigate, not the law school only but the entire institution, on the subject of "do any faculty or staff teach that some Americans are better than others because of race, geographical origin, religion, etc., or that slavery should be 'contextualized' to be not so bad, or similar views?"

    If they can't fire people for holding those views, amend their policies. Who knows who will be caught up in that net?

    If a particular suspect turns out to be innocent, then on its own motion, the University should pay compensation and issue an apology. They're used to apologies, after all.

  29. The whole thing is ridiculous. There are hundreds of lawyers and jurists qualified to be on the Supreme Court. There is no best pick. It reminds me of the top 100 guitarist ranking. Besides it's a high government post, not the civil service exam.

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