A Strange Case for Ideological Diversity at Law Schools

-- By PatrickWaldrop - 11 Mar 2017

Attending law school became a fundamentally different experience on November 9, 2016. It was as if the floor had fallen out from underneath us. Prior to November 9, Donald Trump and conservative ideologies in general had been relegated to nothing more than easy joke material. After November 9 however, many students and professors questioned whether the law was something that even still existed – let alone something worth studying. Post-inauguration, nearly every class period of Constitutional Law has hosted a thinly-veiled discussion of whether or not the Constitution is of any use to us when our country is now run by men who do not seem to have the faintest understanding of how the document works or what it says.

The Decline of the Lawyer-Politician

Men with little understanding of the Law making and enforcing the Law is not, however, a new phenomenon. The number of lawyers holding elected office in the United States has in fact been steadily declining for decades according to research done by Nick Robinson in his paper, “The Declining Dominance of Lawyers in U.S. Federal Politics.” Donald Trump is merely the newest and shiniest poster child of this problem. The percentage of Congressmen who are or were lawyers peaked at around 80% in the mid-nineteenth century, but today that number sits at less than 37% – the lowest it has ever been. 59% of all United States presidents have been lawyers, but only 4 of the last 10 were.

This phenomenon is not limited to the federal government either. In 1976, lawyers made up 22.3% of state legislators, but in 2016 that number had declined by more than a third to 14.4%. (http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/12/10/state-legislatures-have-fewer-farmers-lawyers-but-higher-education-level) Kansas briefly made headlines after the 2016 election after it was discovered that no senator in the Kansas Senate was a licensed attorney despite a statutory requirement that a licensed attorney from the Senate serve on the Joint Committee for Special Claim Against the State. (http://www.kansascity.com/news/politics-government/article126527264.html)

It is unclear of course whether this is actually a problem. On the one hand, it seems obviously desirable that people who make and enforce our laws have a deep understanding of how laws work, but on the other hand, how can we have a government of the people and by the people when the members of that government are predominantly pulled from a pool of less than half a percent of the population? (http://www.americanbar.org/content/dam/aba/administrative/market_research/total-national-lawyer-population-1878-2016.authcheckdam.pdf)

That question is not what I seek to answer here though. Assuming that the decline of lawyers holding elected office is a bad thing, I am curious whether the key to reversing this trend lies in law schools. As I have found law schools to be, both in and out of the classroom, quite vocal in decrying the current state of affairs, it seems likely that this is something law schools would be very interested in. Unfortunately, the solution I propose may not be the most palatable: put more conservative voices in the front of the classroom.

The Liberalization of Law Schools and Lawyers

It’s no secret that conservative voices are disappearing on university campuses, (https://www.washingtonpost.com/news/wonk/wp/2016/01/11/the-dramatic-shift-among-college-professors-thats-hurting-students-education/?utm_term=.484835753f8c), and law schools have not been immune. James Lindgren, a professor at Northwestern’s Pritzker School of Law, recently found that 82% of law professors are Democrats. (https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2594499_code276199.pdf?abstractid=2581675&mirid=1)

As a liberal, I must confess that I don’t enjoy paying lip service to one of the conservative’s favorite talking points: those darn college professors spreading their elitist, liberal nonsense to unsuspecting students. Like any good liberal, I’ve traditionally celebrated this increasingly leftward skew, but what if the liberalization of higher education has hurt liberals just as much as conservatives in some areas? Is it pure coincidence that the number of lawyers in elected office has declined while the number of conservative law professors has also declined?

The Effect on Conservative Clerkship Hiring

I first began thinking this may be a problem in the context of some remarks by Laurence Silberman, a Senior Judge on the DC Circuit, at a small lunch event last month. Judge Silberman was discussing clerkships and the importance of a relative ideological alignment between a clerk and a judge, when he commented that the Harvard Law faculty had been evenly split between Nixon and Kennedy in the 1960 presidential election. In the most recent presidential elections, however, the Harvard faculty had overwhelming supported Obama and then Clinton. He partially attributed the difficulty in finding well-trained, conservative clerks to this ideological shift.

If there is one thing that the 2016 election has cemented, it is that the federal court system will not be making a significant leftward shift anytime soon. Conservative judges will continue to take up seats on the bench, and they will continue to hire conservative law clerks. As the sources of conservative legal education dry up, the conservative students left standing at elite institutions will find themselves in ever-increasing demand, and conservative judges will have to begin expanding their searches.

Applying the Clerkship Problem to the Decline of Lawyer-Politicians

The world of conservative clerkships is a microcosm of politics at large in this regard. Lawyers are more liberal than the overall population. (http://scholar.harvard.edu/files/msen/files/judicial_ideology.pdf) As the number of conservative lawyers decreases, demand for conservative representation does not. This means conservatives have to settle for a smaller pool to pull candidates from or expand the pool. The decline of lawyers holding elected office, now embodied by President Donald Trump, is evidence that conservatives may have largely chosen the latter.

But the decline of lawyers holding elected office isn’t just on the conservative side of the aisle. As conservatives have had luck looking outside the legal professions, liberals have done the same. Just this month, Oprah Winfrey, emboldened by a President Trump, hinted at exploring a run in 2020. (https://www.bloomberg.com/news/videos/2017-03-01/the-david-rubenstein-show-oprah-winfrey) If they get a shiny new toy, shouldn’t we? What if by squeezing out conservative voices in law school classrooms and thereby choking off the supply of conservative lawyers to run for office, we forced conservatives to run unqualified, all-bark-no-bite candidates for decades which in turn changed the playing field so drastically that our own pragmatic, deal-making lawyers couldn’t compete? Maybe it’s time to make ideological diversity a priority in the American law school.

There are two assumptions here that I don't understand: first, that the problem being discussed in the law school now arises from conservatism; and second, that the ignorance to be concerned about results from law-makers without law licenses.

I don't understand the first point, because I see no relationship between conservative ideology (which has been the default position of every president in my lifetime), and the lawlessness and corruption of Donald Trump. I don't understand the second, because (if one leaves your short-term statistical baseline for a longer-term view of how American democracy staffs itself) the proportion of lawyers in the legislatures of the country is not in any meaningful way related to the justice of social outcomes.

Nor do I see the slightest reason to believe that there are not enough conservative people in American law schools to provide staffing for the elected positions they might run for.

Revising productively, in my view, means meeting these concerns in one way or another.