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Ilya Shaipiro

Georgetown Law's actions against Ilya Shapiro lack credibility

Criticizing racial discrimination is protected by the university’s ‘Speech and Expression Policy’

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Ilya Shapiro spoke out against racism in a tweet, and this week the Dean at Georgetown law school placed him on administrative leave, pending further investigation. The decision is disgraceful.

During the 2020 Democratic primaries, Joe Biden was granted the endorsement of South Carolina Rep. James Clyburn, in a quid pro quo exchange for Biden's promise to nominate a black woman to the Supreme Court. Many previous Supreme Court nominations have considered the political advantages of potential nominees' home state or region, ethnicity, religion, sex, race, or other biographical elements. Never before has a President announced such a narrow rule about who would be considered.

While reasonable people can differ, an ABC News/Ipsos poll found that 76% of Americans agree that Biden "should consider all possible nominees" rather than "only nominees who are Black women." Those who disagree with Biden's limit include 54% of Democrats and 72% of nonwhite Americans.

Ilya Shapiro, who was slated to join Georgetown Law as a senior lecturer on Feb. 1, agrees with the American majority. This is no surprise. He headed the Cato Institute's Center for Constitutional Studies. As Cato's Executive Vice President David Boaz has long made clear, Cato hires on merit alone. Thus, all Cato's employees—whatever their race, sex, religion, ethnicity, sexuality, or other identity—know that they were chosen because they were the best candidates for the job, and not because of favoritism.

Last week, Shapiro tweeted that on the merits, the "best" nominee for a Democratic president would be Sri Srinivasan. Serving on the D.C. Circuit Court of Appeals since 2013, Srinivasan is presently the Chief Judge. Previously he was Principal Deputy Solicitor General, and he has argued 25 Supreme Court cases. As Shapiro noted, Srinivasan is an immigrant from India, and would be the first Asian-American on the Supreme Court.

In Shapiro's view, anyone else nominated by a Democratic president would be less capable a justice than Srinivasan. Although it's possible to argue that some other potential nominee is even more capable than Srinivasan, Shapiro's view that Chief Judge Srinivasan is the "best" was reasonable.

Shapiro's analysis conflicted with that of Slate's legal commentator Mark Joseph Stern. Stern's fortes include the epithetical. He seems to sincerely believe that people who disagree with him are racist.

For example, a bill currently in Congress, H.R. 1, would forbid states to require photo identification for voting, as some states currently do. Polls consistently show that voter ID laws have strong support among the public in general, among a majority or plurality of Democrats, among people of color, and among blacks. See Monmouth Poll, NPR/PBS/Marist poll, Honest Elections Project poll, Politifact (NY polling), CNN analysis. But according to Stern, critiques of H.R. 1 "are not principled positions." "Rather, they are misleading at best, deliberate falsehoods at worst, and generally incoherent. . . . the same old Jim Crow mindset . . . dressed up in Federalist Society–approved legalese." The criticisms are a "bad-faith effort to kill large-scale democracy reform . . . another nihilist run at further undermining voter confidence . . . overt racialized vote suppression." Opposing H.R. 1 is "a ragtag mob of criminals, all of whom have succeeded in stealing elections or attempting to steal elections," and who believe "that democracy itself is the crime."

In Stern's imagination, if the Federalist Society had existed in 1965, it would have opposed the Voting Rights Act of 1965. Then "we'd get Volokh Conspiracy posts about how anyone who disagreed was a #resistance hack." Stern added three prayer emoticons to his tweet: "Law professors I am begging you to stop playing nice with colleagues who are committed to perpetuating minority rule and white supremacy through the faux neutrality of bunk constitutional theory, the time for blunt truths about this sanitized subversion of democracy is now."

Stern did not play nice with Ilya Shapiro.

Shapiro wrote that since Chief Judge Srinivasan would be the "best" nominee by a Democrat, any other nominee would not be as good. Because Biden has limited himself to considering only black women, then the non- Srinivasan that Biden will nominate will be "a lesser black woman." In Shapiro's view, every possible Democratic nominee—whether a white male, white female, black male, black female, and everyone else—is "lesser" than Srinivasan. Shapiro wrote:

Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn't fit into the latest intersectionality hierarchy so we'll get lesser black woman. Thank heaven for small favors?

Because Biden said he's only consider black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.

Stern told his readers: "Shapiro preemptively declared that Biden's nominee, whoever she is, will not be qualified." This is plainly false. Shapiro said that because Judge Srinavasan is the most qualified nominee, anyone else would be less qualified. Shapiro did not say that Srinavasan was the only qualified potential nominee. At any given time, there are dozens of people may be qualified to become astronauts, but only one of them will be the "best."

Stern continued:

To Shapiro, the nomination of any woman of color is inherently suspect. He simply cannot see how such a candidate might have earned the position; he assumes she coasted, undeservedly, on affirmative action. And he doesn't see how this belief is colored by his own racism.

And:

No matter how qualified Biden's Supreme Court nominee is, Shapiro will accuse her of being unqualified. Why? Because he cannot accept that a woman of color deserves to sit on SCOTUS. His assessment of nominees is contaminated by his own racism. He has made this painfully clear.

Shapiro's supposed "overt and nauseating racism" made Stern "deeply ashamed of my alma mater."

Shapiro deleted the tweet, apologized, and said his wording had been "inartful." In a follow-up comment, he again apologized for "my poor choice of words, which undermined my message that nobody should be discriminated against for his or his skin color."

Stern, for his part, said that Shapiro never should have been hired, but he denied attempting to get Shapiro fired.

Georgetown Law's Dean, William Treanor, issued a statement denouncing Shapiro. Treanor claimed that Shapiro had suggested that "the best Supreme Court nominee could not be a Black woman." This is true only in the sense that Shapiro was explicitly discussing a 2022 nomination by a Democratic President, and since Shapiro thinks Sri Srinivasan is the "best" nominee for a Democratic President, then the "best" nominee could not be a black woman, a white man, a Native American, or anyone else.

In fact, Shapiro has said that the best nominee for the Supreme Court could be a black woman—namely D.C. Circuit Judge Janice Rogers Brown. In a 2016 event at the University of Chicago Law School, he listed Judge Brown as among several he would consider nominating, if he had the power. Judge Brown, who retired from the D.C. Circuit in 2017, is perhaps even more distinguished that Judge Srinivasan. She joined the D.C. Circuit in 2005, having served since 1996 on the California Supreme Court, and before that in several high-level legal roles in the California state government. But she is an originalist and therefore anathema to Biden, who led a filibuster against her nomination to the D.C. Circuit. When President Bush was considering nominating Brown to be the first black female Supreme Court Justice, Biden specifically threatened to filibuster her, and her alone.

On Monday, Dean Treanor placed Shapiro on administrative leave, citing the "pain and outrage" of Georgetown's black students, professors, staff, and alumni. He added, "Ilya Shapiro's tweets are antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity."

The Dean's statement is true if "inclusion, belonging, and respect for diversity" means that racial preferences may never be criticized. Some people who favor racial preferences, or perceive themselves has having benefited from such preferences, are outraged at criticism of racial discrimination. However, law schools are supposed to be places where all ideas can be debated logically. Lawyers who cannot bear to hear ideas they don't like will be poor advocates for their clients in our adversarial legal system, and professors who can't tolerate criticism of their own ideology are poor role models for students.

Dean Treanor wrote: "Racial stereotypes about individual capabilities and qualifications remain a pernicious force in our society and our profession." Not a word Ilya Shapiro has written in his long career has indulged in racial stereotypes. Always, he has advocated against racial discrimination and in favor of meritocracy. As an immigrant whose Jewish family fled persecution in the Soviet Union, he well understands the evil that results when governments discriminate. He has spent his career defending the victims of government bullies and in affirming the rights of everyone to the equal protection of the law.

The Dean announced "an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment." The statement lacks credibility, for there is nothing to "investigate." Shapiro's words are already in the record. So are Georgetown's legally binding written rules about academic freedom. Either Georgetown's existing rules forbid criticism of racial preferences, or they protect such criticism as part of academic freedom. Every document relevant to deciding the question already exists and is known to the Georgetown administration.

Georgetown is legally bound, for contractual purposes, by its Speech and Expression Policy, and by the University's formal adoption and incorporation of the 1940 Statement of Principles on Academic Freedom and Tenure of the American Association of University Professors. A letter from Foundation for Individual Rights in Education to Dean Treanor detailed the law.

The Georgetown Expression Policy guarantees students and teachers the right to express ideas "thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived."

For example, in 2018, Georgetown security studies professor Christine Fair tweeted against supporters of the confirmation of Justice Brett Kavanaugh:

Look at thus 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.

Adhering to the Georgetown Expression Policy, the University did not fire her. Instead, the University affirmed that her speech was protected.  The University also exercised its own free speech rights by criticizing her uncivil language: "Georgetown urges members of our community to engage in robust but respectable dialogue. While we protect speech and expression, we condemn uncivil and disrespectful discourse that is inconsistent with our values."

Perhaps a closer case involved a member of the law faculty. In September 2020, law professor Heidi Li Feldman wrote that professors and deans should not support the applications of students to clerk for Trump-appointed judges. Further, legal employers should refuse to hire persons who have clerked for such judges.

This seems like harassment of Georgetown Law students who had clerked or wanted to clerk for a Trump-appointed judge. The specific purpose of the harassment was to prevent those students from being employed. Feldman's harassment might be considered to violate Georgetown's Non-Discrimination in Education policy, which "prohibits discrimination or harassment on the basis of any protected characteristic," including "age, color, disability, family responsibilities, familial status, gender identity or expression, genetic information, marital status, national origin, personal appearance, political affiliation, race, religion, sex, sexual orientation, source of income, veteran's status or any other factor prohibited by law in its educational programs and activities." (emphasis added).

However, Dean Treanor apparently believed that Feldman's comments, intended to deny employment opportunities to Georgetown Law graduates and students, and at least arguably in violation of the Non-Discrimination policy, were fully protected by the Georgetown Expression Policy. Feldman was not subjected to any University criticism or discipline.

Within the Georgetown Law student body, it is quietly admitted by some that the campaign about Shapiro's purported racism is really about his actual conservatism.  Student Rafael Nunez—who didn't defend Shapiro but did defend the right of students to speak up for Shapiro—was kicked out of a discussion group and told that he was "privileged." He explained, "Like, my mom was undocumented for 35 years. I grew up on food stamps and welfare and had to dig myself out a hole to get to go to Georgetown Law. . . . And it just bothered me that these kids that didn't even know me—you know, a fellow person of color—were telling me that I'm privileged. Like, you don't know the things that I had to see growing up and what I had to do and struggle to get here." Then student Travis Nix was ejected from the same group for defending Nunez.

Perhaps Georgetown will fire Shapiro. In the meantime, the Foundation for Individual Rights in Education has named Georgetown one of the ten worst universities for free speech, largely because of Dean Treanor. Georgetown can now accurately say that it is on par with Stanford and Yale.

Students considering which law school to attend might have more confidence in a school whose dean has never libeled anyone. Donors to any law school might consider the state of the school's academic freedom.

If Georgetown University truly "prohibits discrimination or harassment on the basis of . . .  race" and truly complies with the Georgetown Expression Policy, then it will welcome Ilya Shapiro, who has always spoken out against racism.

This article is coauthored with attorney Joseph Greenlee. He and I have coauthored many briefs with Shapiro. I have known and respected Shapiro for many years as a Cato Institute colleague.

NEXT: Thursday Open Thread

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  1. I don't think any objective person would disagree that the actions of Georgetown are stupid, rediculous, mis-directed, offensive, and just plain wrong.

    But don't you think these points have already been made in more than sufficient number on this Forum and other places? And don't you think the overkill here should be directed at more pressing issues in the Bill of Rights area?

    Good grief people, let's move on to the important issues of the day, like this for example

    "The Washington Post reports on an explosive memo suggesting that then-President Trump should “invoke the extraordinary powers of the National Security Agency and Defense Department to sift through raw electronic communications in an attempt to show that foreign powers had intervened in the 2020 election to help Joe Biden win.”

    or this for another example.

    A new bill in the Utah Legislature would give parents the authorization to sue schools or education officials for any perceived infringement of their rights as a parent,” the Salt Lake Tribune reports.

    “The bill appears to create a legal free-for-all in which a parent to file a lawsuit and seek monetary damages if they feel any aspect of their child’s education steps on their rights as a parent or if they find it objectionable.”

    or even this.

    “Justice Neil Gorsuch is speaking this weekend to the conservative legal group that boosted his Supreme Court candidacy, in a session at a Florida resort that is closed to news coverage,” the AP reports.

    1. "Parents have a prior right to choose the kind of education that shall be given to their children." - UN Declaration of Human Rights Article 26 Section 3

      Why shouldn't a parent be able to sue if their human rights are being violated?

      1. The "human right" that describes is the right to educate your kids yourself, not to demand that nobody else tell your kids things you don't want the kids to hear.

    2. "The Washington Post reports on an explosive memo suggesting that then-President Trump should “invoke the extraordinary powers of the National Security Agency and Defense Department to sift through raw electronic communications in an attempt to show that foreign powers had intervened in the 2020 election to help Joe Biden win.”

      So less than what Obama/Biden did him and 2016.

    3. No. Shut down the traitor school. Zero tolerance for woke.

      1. The radical dean caved into ghetto thug demands.

        1. Two things you can count on with absolute assurance from Right-types : They rediscover the imperative of fiscal discipline the moment Democrats are setting the budget, and they become shrill champions of absolute meritocracy whenever whenever there's a square-inch of black skin involved.

          Cast your memories back : Did anyone believe Amy Coney Barrett was the "best nominee" (quote from above)? Did anyone care? The answers are no and no. I remember some mild comments about her unusually thin resume but nothing like the shrill hypocrisy seen from the usual suspects in these comments. She was a qualified nominee, met the president's political needs, and that was accepted as normal.

          But of course she's white. Put a black face on Ms Barrett and you can bet the usual suspects would scurry out of cracks & crevasses to wail she's "stealing" the nomination from some worthier person.

          I suspect Professor Shapiro didn't worry about the relative merits of Barrett vs other candidates. Certainly he knows the "best nominee" (quote from above) is by no means assured of a SCOUS nod. We know he didn't put an "asterisk" beside her court seat, as he did with a nominee that isn't even named yet. No doubt he had worthier choices in mind, but somehow he managed restraint. With a "lesser black women" though? Open hunting season from Shapiro. Funny that.

    4. Hey they are a private institution and political opinion does not make a marginalized class. Your political opinions at work can get you fired. As long at the firing doesn't cause a disparate impact on your racial or gender make up. Come on get with the CRA of 1964. You dare question the narrative you should get fired. The Gospel of Georgetown University. Fire him!

    5. Apparently bloggers write about what is currently interesting to them/on their minds. Who knew? Shapiro is a sometimes colleague of Kopel. Seems entirely unsurprising he chose to write about the matter.

      Solution for the issue of bloggers who don't in your view choose topics correctly: find another blog.

  2. If you have good points, you don't need to bury them under polemic.

    But in this rambling screed, I see exactly one point even worth engaging with - your analogizing Heidi Li Feldman's more sober call to boycott Trump judge clerkships with Shapiro's more...pithy inartfulness. It takes some work to ignore how differently those two tones play in academia. It may be dumb, but don't pretend confusion or partisanship in hot takes versus 'we must be clear...' type protest boilerplate.

    And the The Washington Free Beacon?! You should launder your hackish sources more.

    1. Well I admit the Free Beacon shouldn't be ones only news source, but someone reading both the Washington Post and the Free Beacon would be vastly better off than someone who only read one of them.

      1. Or the Nation. Your media landscape seems to lack a left wing.

        Free Beacon is pretty hackish. Stick to Reason.

        1. The Post is left wing....

          1. From the disaffected, bigoted, right-wing perspective . . . sure!

          2. It depends on the issue...they're just as left wing on cultural issues, but not on economics or foreign policy.

            1. Wapo and foreign policy? Never saw a war in the middle east or a chance to settle an old world grudge ("the czar did this or that to my people" mentality) they didn't support. When your "experts" are Jen Rubin, Max Boot, and David Frum expecte war war war (as long as it benefits the right folks).

        2. I'm not afraid of reading anything, which is the point.

          Despite the Beacon being "hackish" at times, the WAPO can be every bit as hackish, and so can the Nation. The difference is the Beacon and Nation are upfront about their editorial slant, while the post claims to be a general interest newspaper, its not.

    2. "And the The Washington Free Beacon?!"

      Any evidence that the article is incorrect, or otherwise hackish?

      1. The Washington Free Beacon hired Fusion GPS to do the oppo research which became the Steele Dossier. Doesn't that make everything the Free Beacon says Far Left Witch Hunt Pedophilia Fake News?

        1. That's not quite true. The Free Beacon did pay Fusion GPS for some oppo research, which is to their discredit, but they did not commission or fund the Steele dossier:

          "The Free Beacon had no knowledge of or connection to the Steele dossier, did not pay for the dossier, and never had contact with, knowledge of, or provided payment for any work performed by Christopher Steele," Continetti and Goldfarb wrote. "Nor did we have any knowledge of the relationship between Fusion GPS and the Democratic National Committee, Perkins Coie, and the Clinton campaign."

          Obviously there were parts of the conservative spectrum that were resistant to Trump in 2016, me included. But at that time Fusion GPS hadn't totally discredited itself, at least not so publicly, so I won't ding them to hard for a press feels Dossier association.

          1. I remember them from digging up who Hillary defended as an attorney long ago.

            Just anything that would fuel the attack.

          2. That's not quite true. The Free Beacon did pay Fusion GPS for some oppo research, which is to their discredit,

            Why?

    3. "If you have good points, you don't need to bury them under polemic."

      I suppose we all have our filters through which we tend to see certain intense arguments as understandably passionate, and others we see as a screed...

      We all have more empathy for "screeds" whose cause we happen to perceive as just.

    4. There is only one objectionable aspect of Biden's announcement, namely it is an explicit quid pro quo.
      "During the 2020 Democratic primaries, Joe Biden was granted the endorsement of South Carolina Rep. James Clyburn, in a quid pro quo exchange for Biden's promise to nominate a black woman to the Supreme Court. "
      And that is what patronage is all about.

      1. It is not patronage. It is supported by a coalition of Dems well beyond black women.

        1. A quid pro quo is patronage is there ever was any. Why are you so you are willfully blind?
          Your " supported by a coalition of Dems" is completely beside the point.
          You probably never understood the patronage system. I grew up in it.

        2. Just in case you missed it in the NYT today:
          "Clyburn Pushes His Pick for Supreme Court, Testing His Sway With Biden
          The highest-ranking Black member of Congress is credited with helping resurrect the president’s 2020 campaign at a critical point. Now he is calling in a favor."

          Why are you so afraid of that reality.

          1. I have to agree with Sarcastro here, that's normal political give and take. I don't think its much worse than Trump releasing his candidate list of Supreme Court justices during the 2016 campaign. I think its a little worse because of the racial pandering, but a lot of that goes on in Democratic campaigns.

            1. Kazinski,
              I never said there is anything wrong with the patronage system. Only that S_O and maybe you are afraid of that concept preferring the cosmetic of "normal political give and take." Yes, that is a good, though non-literal, translation of give and take. Clyburn saved Biden's ass and black women went out in numbers to work for him.
              That is a far better explanation than the racist BS that has been tossed around in the comments about Biden's announcement.
              As for your comment about Trump, it is totally irrelevant to my comment about the patronage "system." Read what is there and don't imagine what is absent and never even implied.

  3. I appreciate this takedown of Georgetown's appalling behavior. But, what did Shapiro expect would happen to someone jumping from CATO to academia? They would have gotten him for spitting on the sidewalk or some such wrong think eventually - he is from the wrong tribe and the rules of admittance have to be reinforced.

    1. " he is from the wrong tribe "

      He is from the wrong side of history, the wrong side of the American partisan divide (he favors the side that prefers race-targeting voter suppression, superstitious gay-bashing, obsolete misogyny, downscale xenophobia, fourth-tier schools, stale thinking, White nationalism, uninformed Muslim-hating, etc.), and the losing side of the culture war.

      1. Obama very publicly renounced the Islam of his father and embraced Christianity as an adult…and Muslims hold him in the lowest category of infidels. Obama is correct—Islam is an inferior religion. All praise Jesus Christ!

      2. Still waiting for Arthur to actually make a prima facia case for (one or more of) those characterizations he always rattles off.

        Repeated assertions don't equal a rational argument.

        1. You are unfamiliar with superstitious gay-bashing?

          Race-targeting voter suppression?

          Republican xenophobia?

          The conservative campuses that congregate at the fourth tier?

          That assertion would be difficult to take seriously. If you are unfamiliar with bigotry toward gays rooted in superstition and conservatism, for example, you are too ignorant to participate meaningfully in reasoned debate among adults.

          1. Left-wing caricatures don't count as a prima facia case, btw...

            1. That Republicans are race-targeting vote suppressors has been adjudicated in federal court.

              That conservatives are superstitious gay-bashers has been established vividly by decades of right-wing homophobia steeped in childish superstition.

              If you bigoted conservatives don't keep your gloves up, this -- the American culture war, which has been crushing right-wing preferences for more than a half-century -- is going to continue to be a rout.

              Even if you do keep your gloves up, though, your bigotry, superstition, and backwardness doom you to being painted into increasingly small, desperate corners by your betters. Most of you recognize this. That's why you are desperate, disaffected, and delusional.

              Carry on, clingers.

      3. Working on a list of elected politicans who favor white nationalism. Federal, State or local level..know anyone? We need to root them out and send them to Hunter Biden reeducation camps

  4. I was actually pleasantly surprised when Stern started covering legal proceedings for Slate. Unlike the unabashed professional distortionist Dahlia Lithwick, he would actually link to the opinions he was talking about and write about the legal issues they raised. Unfortunately, his trajectory has since trended towards increasing hackery. I hope he uses the opportunity to reflect, learn, and grow and makes this the nadir of his career, but I'm not optimistic.

    1. Stern's pretty bad. The HR1 example Kopel singles out is actually a pretty good example. The Democrats, for messaging reasons, packaged all their campaign and voting reforms together and didn't allow votes on a la carte items. That is their right- they control the floor. But having done that, you can't really accuse Republicans of trying to do Jim Crow 2.0 simply because they oppose the package bills. As Kopel points out, they might just oppose Element X or Y of the package bill.

      If they want to get Republicans on record on a clean Voting Rights Act extension, they could put one on the floor. Their fear, of course, is not that it will fail but it could pass, and then the Democrats would have to explain to their own constituent groups why they didn't use the VRA as leverage to pass all the other stuff the groups want. But that's a problem of the Democrats' own making, and has nothing to do with anything being the new Jim Crow.

      My point with Stern is simple: he's supposed to be a legal analyst. He obviously either doesn't understand the politics of HR1 or understands them and decided to lie to his readers. Either way, none of this has anything to with the ultimate issue of whether Republicans support extending the Voting Rights Act or what restrictions Republicans in Congress do or don't support, and he shouldn't be inflaming his readers in such a misleading fashion.

    2. What? Lithwick too frequently went to the snark, but she knew what she was talking about and had a sense of humor. Stern, neither. He's just a standard shrill partisan scold who doesn't have the qualifications for the job.

  5. Should Shapiro be fired? No.

    Is Shapiro a hypocrite with an agenda? If his tweet is taken at face value, absolutely.

    1. He criticized Biden for not selecting the "objectively best pick," even though there is a long history of Presidents not selecting the objectively best pick. Indeed, Shapiro need only look back 2 years, to Trump's selection of Amy Coney Barrett, to find an example of a President who opted for a different approach. The approach most Presidents use when selecting justices is not "objectively best pick" it is "qualified for the job." I don't think anyone could credibly argue that Barrett is not qualified for the job she now holds, but at the same time I don't think anyone could credibly argue that of everyone on the various SCOTUS lists the Trump White House put out, Barrett was the objectively most qualified.

    So, did Shapiro criticize the selection of Barrett in 2020 because there were more qualified candidates who could have been nominated? No. He supported the choice of Barrett.

    So he doesn't have a longstanding belief that "objectively most qualified" person should be nominated for SCOTUS - he just shifted the goalposts in order to take a shot at the Democrats, Biden, and his as-yet-unnamed nominee.

    2. He criticized Biden's decision to nominate a Black women, saying that she would always have an asterisk, saying that race- and gender- based preferences for the selection of a SCOTUS justice are wrong.

    But, that, too, appears to be a newly adopted position of convenience. Less than 2 years ago, Trump announced that he was going to appoint a woman to RBG's seat. (Indeed, Trump had previously said of Amy Coney Barrett that he was "saving her for RBG's seat). A gender-based preference! Despite this, Shapiro did not criticize Trump, and he supported the gender-based selection of Barrett.

    Whatever Shapiro's virtues, intellectual honesty and consistency do not appear to be among them.

    Again, though, he should not be fired.

    1. So in every future SCOTUS appointment, those who routinely comment on such matters will have to name the person they feel should have been picked, or will never be allowed to do so ever again? Seems a bit strict to me.

    2. “Intellectual honesty and consistency do not appear to be among them”. No shit. He’s a political zealot. Like, you know, 90% of the posters here.

      Watch as this unfolds. What Shapiro did and what Whoopi did are pretty damn close in terms of horrible phrasing, poor judgement, and arguable racial discrimination. Yet the folks on here who rip Shapiro will, with a few exceptions, defend Whoopi. And those that rip Whoopi will defend Shapiro. You passionate political people have no intellectual consistency or objectivity. Politics has destroyed those sections of your brains.

      1. Whoopi is an idiot. To be fair, she cannot help herself. Do you get mad when dogs pee on fire hydrants? Well, same kind of deal.

        Professor Shapiro is a very smart man who tweeted an epic brain-fart, demonstrating to all Twitterdom his executive caliber. Execs who make brain-farts like that typically don't stay execs; their boards find new execs to replace them. That is the way of the world.

        1. And it's wrong that that's "the way of the world."

          Decent societies have some grace and forgiveness, particularly for people who apologize.

          1. Cheerio, decent societies do (and should). However, this is business.

            You live in the same real world as me, right? The world where when you F up, there are actual consequences. Consequences like...demotions, suspensions, and on rare occasion - job loss. Those are the things that happen in the real world when you make an epic brain-fart like that. At the executive level, consequences are considerably more brutal.

            Professor Shapiro is a legal luminary. No question about that. Professor Shapiro is a morally decent man. No question about that. I bet Professor Shapiro is a great teacher, too. No question in my mind about that (I have personally heard him lecture). Professor Shapiro is not cut out to be in an executive management role (at this time). No question in my mind at all about that (given the brain-fart). All of these things can simultaneously be true, Cheerio.

            The Boards of CATO and GU should act quickly and decisively. Dragging it out does no one any favors. They must either cut him loose (with regrets), or make a clear statement that they are standing behind their man, on principled grounds they clearly articulate (I prefer this latter outcome, personally).

            1. Thanks for the thoughtful reply. I think we simply differ over whether this is merely unfortunate, etc., vs. something far more dire...

              1. I understand Commenter's point to be that it is usual for senior executives to be the public face of an organization, and for them to be judged on the optics rather than the substance of what they do. You might feel that a slip-up isn't serious, it just looks bad, but not looking bad is a big part of the job responsibilities of someone in that position.

                1. You nailed it. That is the sum total of my critique, particularly your last point.

                  My personal preference is that CATO and GU give a loud, unambiguous and energetic response to the entire world that they are standing behind Professor Shapiro. And they clearly articulate the principles why they are standing by him. That is what I very much would like to see.

                  Sadly, here in the real world, it is a very, very close call on whether he keeps his executive positions.

                  1. Standing behind him, even to the point of endorsing his awkward, bigot-friendly, right-wing blather?

                    Enjoy life at the disaffected, rejected fringe.

            2. FYI, it's Cato, not CATO; it's not an acronym.

        2. Whoopi's comment was factually inaccurate and heavily influenced by the woke bs.

          Shapiro's comment was factually accurate and a fair assessment of poor intellectual thought permeating from the left

          Other that that, both comments were similar

    3. No, he criticized ruling out the potential best candidate up front, solely based on race and sex.

      1. To be fair Harriet Miers was the best lawyer in the history of America and “Senator” Frist rejected her because she didn’t have a penis. How does “Senator” Frist even know one way or the other if Miers doesn’t have a penis??

    4. Fire him...fire him. CATO is full of dangerous libertarians. They dared not question lockdowns and favored mask mandates. Fire him

    5. It's a common fallacy that there is a "best pick" and that we could find it if we tried hard enough.

      His tweet was offensive only to those who choose to interpret it with hostility. But a lawyer should have anticipated that.

      Live by the tweet, die by the tweet.

    6. There is difference with Barrett and Bidens previously announced choice of a Black female.

      Was Barrett the most qualified? Not necessarily , but she was certainly in the top 20.

      In the case of black female justices, the most qualified is probably not in the top 100 (possibly not even in the top 200). Comments from former SC clerks regarding Jacksons reputation as a judge
      "Yet, as I first noted five years ago when she was being talked about as a possible candidate to fill the Scalia vacancy, Jackson is not highly regarded as a judge. Inquiries I have made recently of folks knowledgeable about her work confirm that she continues to have a middling reputation. This criticism, I’ll emphasize, is on grounds of quality, not ideology. Indeed, she is not regarded as ranking high among the ten or so district judges that President Obama appointed to the federal district bench in D.C. "

      1. 'Certainly' is not an argument.

        1. is that your best criticism

          Most people would have rated Barrett in the top 20, at least the ones that are not partisan zealots

        2. 'Certainly' is not an argument.

          Neither are pathetic virtue-signaling, straw man one-liners and flat-out lies, but that doesn't stop you from relying almost exclusively on all three.

      2. " Was Barrett the most qualified? Not necessarily , but she was certainly in the top 20. "

        Ignorant, bigoted, and superstitious is no way to go through life. But if that is how you wish to spend the time you have remaining until replacement, be my guest. It won't influence the culture war or liberal-libertarian progress in the slightest. Your stale intolerance and mythology are doomed in modern, educated, improving America.

    7. And of course Reagan promised to pick a woman for the Supreme Court, and low and behold it wasn't to select the best possible person, it was political:

      “It is time for a woman to sit among the highest jurists,” Reagan said, as he worked to close a gender gap in his run against President Carter and change the subject from a foot-in-mouth comment the Republican made blaming trees for air pollution.

      The vow to appoint “the most qualified woman I can possibly find” to the Supreme Court was motivated by one thing alone: political self-interest.

      “It was not an ideological decision at all,” said Stu Spencer, Reagan’s chief strategist and architect of his campaign pledge. Nor, Spencer said, did the announcement stem from some heartfelt desire by Reagan to remedy a long-standing flaw in the country’s administration of justice.

      It was, Spencer said, all about “seeking a solution to his deficit problem with women.”

      Source

  6. David Kopel ignores the point that he is making these observations from a blog that this archaically male (roughly 99 percent of the posts at the Volokh Conspiracy are submitted by males) and obsoletely White (roughly 99 percent of the posts at the Volokh Conspiracy are submitted by Whites).

    Mr. Kopel has associated with such a White, male blog for years.

    I doubt the modern American mainstream is in the market for pointers on much of anything from Mr. Kopel (or any other Volokh Conspirator).

    If Mr. Kopel wishes to attempt to defend The Volokh Conspiracy's record on diversity, bigotry, or "selection based entirely on merit," I would welcome his observations.

    I hope he does. I expect him, however, like the other Volokh Conspirators, to continue nipping at the ankles of better people and institutions from a tellingly White, instructively male, right-wing safe space.

    1. That you also chose to launch this attack on Georgetown from a right-wing blog that has repeatedly imposed partisan, intensely hypocritical, viewpoint-driven censorship demonstrates a hearty lack of self-awareness, Mr. Kopel.

      1. You often refer to viewpoint-driven censorship having occurred at this blog.

        I haven't noticed it...but if true, I'd agree with you that it's wrong.

        Are you as consistent in opposing viewpoint-driven censorship?

      2. Hey man I'm latino...I guess I'm the 1%'er around here...cool that makes me right?

    2. "... roughly 99 percent of the posts at the Volokh Conspiracy ..."

      Leave Josh Blackman out of this

      1. Hey, it's not like he's Josh Whiteman.

    3. It's a bit gaslightly to keep pretending that most of the professors on this blog aren't widely-respected legal academics (which they indisputably are).

      And, it's quite bizarre how obsessed you are with their demographics.

      1. My obsession? They’re the ones who constructed an obviously and remarkably homogenous roster of Whites and males, then started sniping at the diverse, modern mainstream.

        1. Of course, it's the Jewish part that really bothers Kirkland.

  7. Presumably, Dean Treanor found he had no choice but to punish Shapiro. It’s gotten that bad. WSJ won’t even verbalize the former name of the Washington Commanders (which sounds suspiciously close to Masters - another racially-loaded term).

    1. Washington Commies has a ring to it . . . at least while Synder is associated with the organization.

      1. Can't wait for Thanksgiving day game in Dallas. "It is the Cowboys versus the Commies"..this should be very very good.

  8. Georgetown, a Catholic institution, partakes of the general corruption of the Church. Part of the way to recovery is for Catholic colleges and universities to actually be Catholic.

    It may well be that Georgetown has contractual and statutory obligations which don't allow it to be truly Catholic, in which case it should disaffiliate from the Church and the Church should disaffiliate from them.

    Otherwise the University should observe the relevant standards:

    https://www.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_15081990_ex-corde-ecclesiae.html

    One point I noticed is this:

    "Article 4. The University Community...

    "§ 3. In ways appropriate to the different academic disciplines, all Catholic teachers are to be faithful to, and all other teachers are to respect, Catholic doctrine and morals in their research and teaching. In particular, Catholic theologians, aware that they fulfil a mandate received from the Church, are to be faithful to the Magisterium of the Church as the authentic interpreter of Sacred Scripture and Sacred Tradition(50).

    "§ 4. Those university teachers and administrators who belong to other Churches, ecclesial communities, or religions, as well as those who profess no religious belief, and also all students, are to recognize and respect the distinctive Catholic identity of the University. In order not to endanger the Catholic identity of the University or Institute of Higher Studies, the number of non-Catholic teachers should not be allowed to constitute a majority within the Institution, which is and must remain Catholic."

    If a Dean gets a report that some professor or even higher-ranked employee has said stuff which sounds like denying the unity of the human race by positing superior and inferior classes of humans - phrases like "lesser black woman" or "white male clingers getting stomped by better Americans" - then the Dean should look into it to see if it was actually racist or bears a non-racist explanation.

    In this specific context, I don't think "lesser black woman" actually means what it sounds like, but it may be well to tell the employee to stay off Twitter.

    As for white males getting stomped by better Americans, I can't see how any university, religious or non-religious, ought to put up with such vile rhetoric.

    Another issue is whether this Judge Sri fellow supports Roe v. Wade or its progeny. If a professor endorsed such a judge, that might be a problem.

    1. Precisely how much role should childish superstition have in accredited education, in your judgment?

      1. Just keep stomping on groups you dislike and shoving things down their throats in the name of progress. That's better than any religion.

        1. Though I suppose it's not surprising that the unity of the human race is a childish superstition.

          1. Unity of the human race? What are you mumbling about?

            1. Must you parody yourself so much?

    2. Maybe Catholic colleges should focus on practicing Catholic facility.

    3. For what it's worth, my comparatively middle-of-the-road post (not fully siding with either the prof or his attackers, while suggesting the prof's "punishment" should be limited to getting investigated and kept off Twitter) - only got responses to one of the resident trolls, who was triggered by any discussion of Catholic affairs (I suggested Georgetown could begin the recovery process for Catholic institutions *or* stop being Catholic altogether).

      1. OK, *two* resident trolls, but I had the second one blocked.

  9. Actual racism ie picking a person for a job based on their skin color *applause*

    tweeting against it with a 3 word phrase which could be twisted as insensitive if you ignored all logic but was obviously not *fireable offense*

  10. This is entirely a judgement call by the leadership at that school. By their fruits shall you know them. By their choices shall you learn what they value. The real question is would an intellectually honest person even want to work there?

    1. John Thompson worked there for years, and he refused to recruit or bring in any but black basketball players. I saw it first hand with Jeff Lebo in Carlisle PA, who expressed interest in Georgetown. Thompson wouldn't even consider him, so he went and starred at UNC instead.

  11. I think the two sides keep talking past each other on this stuff because everyone wants to assume their priors are "obvious" without having to make their case.

    The problem is, nobody gets to do that when it's not "obvious" to half the population. So make your case - but it gets kinda gaslightly to just act as if either view is a given.
    -----

    The *Left's* Priors: Racism remains so pervasive in society that we should all still have an especially heightened level of sensitivity to anything that could potentially allude to it - even if unintentionally, because it's still so "raw" that we should all still be on such "high alert" for such potential evokations/associations.

    The *Right's* Priors: Nope, that kind of thinking has simply past its "sell by" date (as John McWhorter puts it, although he's not even on the right...), so we've reached a point where people should be able to simply apologize for being unclear and then move on.
    -----

    Neither of these can be "willed" into consensus status by sheer insistence. Persuasion or bust.

    1. I'm on the right myself, but I realize that I can't simply live as though my priors are universal.

  12. To me, the worst part of Shapiro's original tweet is the idea that there is such a thing as an "objective" best choice. Srinivasan might be a fine choice, but whether he's better than the other names that have been suggested is a matter of opinion, not of fact. And I don't think it would be realistic to suggest that the choice of a candidate for the Supreme Court has always (or perhaps ever) been guided only by the goal of identifying and selecting the single most-qualified individual in the country.

    That said, Shapiro was extremely tactless in his reference to "a lesser black woman." At the very least, he ought to have realized that any such comment would be open to misinterpretation, and that he therefore needed to phrase very carefully, which clearly he did not. The reaction has been disproportionate and intellectually dishonest, but unfortunately, you have to plan for the worst and write defensively if you're going to express these kinds of opinions. I hope he gets through this controversy without losing his job or suffering any further punishment.

    1. At the very least, he ought to have realized that any such comment would be open to misinterpretation, and that he therefore needed to phrase very carefully, which clearly he did not.

      It was a tweet, not a law review article or even Op/Ed.

  13. Opposing H.R. 1 is "a ragtag mob of criminals, all of whom have succeeded in stealing elections or attempting to steal elections," and who believe "that democracy itself is the crime."

    Right there is why I think NYT v Sullivan was wrongly decided.

  14. This is such an echo chamber sort of post. Obviously 99% of all the people in the real world know that universities are cesspools of left-wing hypocrisy, and that they aren't going to change anytime soon, and that no intelligent person pays any attention to anything that comes from a university administrator's mouth. But there is a small, powerless minority of right-of-center academics who seem to enjoy pointing out the boundless mendacity of their employers and supervisors. If that's what pleases you, pushpin is just as good as Plato, but most people with genuine intellectual capacity deploy it in more useful enterprises.

    1. There are plenty of dumbass schools operated by and for conservatives. Conservative administrators, faculty members, curricula, students, dogma, etc. They’re shit-rate schools, often mired in the can’t-keep-up backwaters, so you don’t hear so much about them, but there are plenty of them.

      It bugs conservatives that the strongest schools are liberal-libertarian mainstream institutions. They should be content with their shit-rate schools or try to build better conservative schools. In any event, they should quit nipping at the ankles of better schools and should quit whining.

      1. There are certainly conservative students at those schools. They tend to be admitted not on the basis of their race, of course, but by virtue of other characteristics.

        Meanwhile, we can tell from the behavior of some of the other students at those "strong" schools that they know why they are there. And many seem to resent that everyone else knows it, too.

      2. OK, Boomer. Please, tell the class when it is you are resigning. You need to be replaced by a diverse. Or, STFU, you vile, toxic lawyer.

  15. "Student Rafael Nunez—who didn't defend Shapiro but did defend the right of students to speak up for Shapiro—was kicked out of a discussion group and told that he was 'privileged.' He explained, 'Like, my mom was undocumented for 35 years. I grew up on food stamps and welfare and had to dig myself out a hole to get to go to Georgetown Law. . . . And it just bothered me that these kids that didn't even know me—you know, a fellow person of color—were telling me that I'm privileged. Like, you don't know the things that I had to see growing up and what I had to do and struggle to get here.' Then student Travis Nix was ejected from the same group for defending Nunez."

    I'm surprised this part didn't get more attention in the comments. It's beyond chilling to see this sorts of second- and even third-order persecution. It just shows the bad-faith rot behind it all...

  16. I’m not endorsing Professor Shapiro’s treatment. But in the future, if he wants to promote the candidacy of Judge Srinivivasin, he might be better off talking about Judge Srinivasin’s merits rather than denigrating other candidates in a matter that I think could very understandably be perceived as rude, if not downright attack-dog aggressive.

    I understand rudeness and attack-dog tactics shouldn’t be enough to get one kicked off the faculty. I also understand that claims his remarks show he’s an overt racist are highly exaggerated.

    But nonetheless it is bad behavior. And Professor Shapiro’s reputation deserves to suffer for such behavior.

    1. Suffer? He'll win a Federalist Society award for this.

  17. In Stern's imagination, if the Federalist Society had existed in 1965, it would have opposed the Voting Rights Act of 1965.

    Given the reaction to Shelby County, and the general conservative attitude towards voting rights, I don't see why you think he's wrong.

  18. "Never before has a President announced such a narrow rule about who would be considered."

    Well, there was the time when candidate Donald Trump released a list with a handful of names of people he would consider putting on the court. That's a lot more narrow than Biden's criterion.

  19. The moral righteousness of the wealthy American academic is something to behold. Almost as repugnant as the free-marketeers thinly veiling their claptrap in the garb of scholarship.

    Seems to me like a good age to spend more time in the library than in the common room. There is an extraordinary amount of knowledge to be found in books published 75 to 100 years ago -- the ones no one now is reading or putting on syllabi. (The university press bibliographies (Oxon, Cantab, etc.) that most academic libraries subscribe to usually offer a good array of the worthwhile work from a generation or two ago.)

    Sophistry has an ancient hatred of ideas with explanatory value; they tend to get in the way of the rhetoric.

    Mr. D.

    1. "The moral righteousness of the wealthy American academic is something to behold. Almost as repugnant as the free-marketeers thinly veiling their claptrap in the garb of scholarship."
      So, let's see:
      1. In order to be morally righteous, one must be (1) poor, (2) not American, and (3) not an academic.
      2. Any purported "scholarship" that deals with "the free market" is, by definition, (repugnant) claptrap.
      Got it.

  20. Mr. Kopel spilled a lot of ink in defense of Mr. Shapiro, but sometimes the best explanation is occam's razor.

  21. I believe inartful is a good term for that tweet. I do not believe he should have deleted the tweet. At some point you got to let the inartful things you stay stand and you have tell people if you choose to interpret the tweet that way that is on you.

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