It's Blacklisting All the Way Down

[UPDATE: See Prof. Hamburger's response below.]

Prof. Philip Hamburger (Columbia) has an op-ed at the Wall Street Journal arguing, among other things,

What should be done about law-school deans and others in legal institutions who censor, cancel, blacklist, refuse to hire, fire, "investigate" and otherwise threaten others for their opinions? A partial answer lies in reminding them that their misconduct may disqualify them from ever sitting on the bench….

If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, can he be trusted as a judge to listen with an open mind to conflicting legal positions? If someone can't tolerate both sides, how can he be trusted to do justice impartially? …

The position of a judge is unlike any other job. Judges enjoy vast authority over their fellow Americans, and the primary defense against abuse of this authority is their internal commitment to impartiality—their dedication to hearing both sides with an open mind and deciding without prejudice. This is a constitutional requirement of judicial office and due process.

So it's not too much to consider intolerance or cowardice disqualifying. Those who have shown themselves to be intolerant of difference or too fearful to stand up for what is right have no business sitting on the bench.

I appreciate Prof. Hamburger's concern about the disease, but I'm not on board with the cure.

Let's step back and try to get a sense of perspective about all this: A 23-year-old law review editor does something "intolerant," and this makes him unfit, perhaps thirty years later, to serve on the bench? Really?

Could it be that half a lifetime in the practice of law might change a person (whether for the better or for worse)? Why should we think that having exercised poor judgment—nothing criminal or even tortious or violative of the rules of ethics, but just weakness, folly, intolerance, or self-righteousness—just a few years into adulthood should weigh so heavily when we evaluate an accomplished professional? I wouldn't appoint people to judgeships because of something great they did when they were 23. I wouldn't blackball them because of something intolerant they did.

Beyond that, consider how categorical the proposal is in scope as well as in time: "If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, …." Well, yes, if a dean had fired a professor for his speech, and that violated the First Amendment (in a public university) or a state statute (which may apply even to private universities) or academic freedom principles, it's legitimate to count that against the dean in various contexts.

On the other hand, hiring decisions are inevitably based on the content of a candidate's scholarship, and sometimes even on the candidate's opinions. (Some opinions, for instance, may be viewed as reflecting poor reasoning.) If a committee member "excludes" a candidate because the member thinks the candidate's opinions about legal history are just historical nonsense, that might be reasonable, or might be intolerant, or might be some mix of the two—but I doubt it tells us much about whether the committee member would make a good judge.

On top of that, while some institutions ought to be tolerant of a vast range of ideological beliefs, not all should be. Some law reviews are deliberately ideologically focused, and are known to be that, just as some serious magazines are deliberately ideologically focused. It's hardly disqualifying from a judgeship, I think, for a student to be an editor of such a journal, and to "disadvantage[]" certain authors' "work" because of the authors' "opinions" embodied in that work.

The article likewise faults "law firms [from] discourag[ing] associates, even partners, from taking pro bono cases for dissenting individuals," and I think that's often a reasonable criticism, especially if the law firm promotes itself as a big tent. On the other hand, some firms are deliberately highly ideological; I wouldn't expect an overtly pro-labor-union law firm, for instance, to approve many pro bono cases supporting anti-labor advocates, or vice versa. Yet I don't think that former managing partners of such law firms, whether on the Left, on the Right, or anywhere else should be disqualified from judgeships.

To be sure, implementing such a categorical rule—if it could indeed be consistently implemented—might help deter some bad behavior (as well as some unobjectionable behavior). But so what? Speeding is bad behavior, but I wouldn't endorse disqualifying from a judgeship anyone who had ever gotten speeding tickets while in law school, even if I thought that it might add an extra dollop of deterrent.

Now if some Presidents or Senators—or their analogs in various state judicial appointment systems—wanted to consider whether such recent actions by a dean, professor, or lawyer reflect on the person's judicial temperament, that would be fine. (I wouldn't consider such actions by a law student, just because those actions were almost certainly at too different a time in the candidate's professional life.) But those actions should be considered alongside all the other features of the prospective judge's career, rather than as some sort of categorical litmus tests.

And we should also recognize that judges are expected to exercise an impartiality of a sort that lawyers and professors generally need not. I take it that it's OK for a professor to prefer applicants with a higher GPA or who had gone to a more prestigious law school, even though a judge should presumably not consider that in deciding what witness to credit or what sentence to hand down. Likewise, I take it that it's OK for lawyers to choose their own clients (pro bono or otherwise) based on the clients' ideology or professional role (e.g., employee, employer, tenant, landlord, etc.), without making it impossible for us to "trust[]" the lawyers "to do justice impartially" once the lawyers are appointed to the bench.

In any event, it seems to me a mistake to create overbroad, perpetual, and categorical disqualifying rules—for judicial appointments or for most other things—especially when those rules turn on behavior that is generally perfectly lawful even if, in our view, insufficiently tolerant. We need fewer blacklist threats these days, I think, rather than more.

UPDATE: Prof. Hamburger graciously passed along this response, which I'm delighted to post:

My thanks to Eugene for his thoughtful response to my Wall Street Journal piece arguing that intolerance is disqualifying for judicial candidates. As at other times when I disagree with Eugene, I am half persuaded he is right. Certainly, he has a good point that the disgrace of blacklisting should not induce counter blacklisting. But that's not what I was proposing.

Imagine that in reaction to the current academic exclusion of conservatives and libertarians, I had proposed excluding liberals and progressives from judicial positions. That would be blacklisting. In contrast, my argument does not take aim at anyone for their views. It merely points out that many in the legal community have shown themselves to be intolerant or cowardly in ways that are incompatible with the constitutional duty of a judge, let alone the due process of law. So I think Eugene's critique of "blacklisting all the way down" is misplaced. That's not what this is about.

But Eugene surely is making a very important point where he worries about categorical barriers to judicial office. People do change. Most don't change sufficiently, but some do. I therefore heartily agree that there shouldn't be a categorical rule against the intolerant and welcome that as a somewhat friendly amendment.

He also is right that most hiring or editorial decisions turn on complex evaluations of scholarship—questions that don't lend themselves to being characterized as tolerant or intolerant. My point, however, was that intolerance is disqualifying. Perhaps I could have been clearer about what I meant by this. Lest there be any doubt—and I appreciate Eugene's spurring me to be more explicit—my essay's concern is with express or otherwise manifest intellectual prejudice, not with trying to discern whether quotidian scholarly evaluations are ideological.

Eugene also makes a good point that students are young. So, perhaps, one should be particularly open to their renunciations of early intolerance. But most law review editors are in their mid-twenties. At that age, they should be able to understand the danger of blacklisting conservative or libertarian students or blockading conservative, originalist, and 'anti-administrative' articles. This is utterly intolerant, and a student at any law school should be able to understand why it is profoundly wrong.

If the question were merely about treating such students justly, their intolerance would be less significant. At stake, however, is justice for all the litigants who might come before them and for all the Americans who might have to live under their interpretations and precedents. Once the question of justice is understood with this breadth, it becomes necessary to worry about protecting Americans from injustice. So there is a tension between the desire to forget and forgive and the need to remember and protect.

Ultimately, the point is not is not about my views or Eugene's, but about the role of judges. To be a judge and to avoid denying the due process of law, an individual sitting on the bench must be willing to hear both sides in a case. In listening, she must keep an open mind. And ultimately she must be determined to reach a judgment devoid of prejudice—a judgment that rises above her precommitments.

So, when a dean, professor, student, or partner acts with manifest intolerance, it is difficult to avoid having doubts about her qualification to be a judge. The depth of those doubts will depend on the circumstances, and it will not always be clear where such doubts should lead. But such doubts are inevitable and constitutionally desirable. America cannot afford intolerant judges.

(By the way, the "Eugene"s in the response stem from the fact that Prof. Hamburger and I are indeed on a first-name basis—we've known each other for years. My formality in turn stems not from personal distance, but from my custom in blog posts to generally refer to people formally, unless they are co-bloggers. In person, we'd be Phil and Eugene to each other.)