The Post-Grutter Aftermath: Should Law Schools Court Conservatives?

McGinnis's study showed that law professors from top 20 law schools were more liberal than their peer demographic groups.

Because law professors play an influential role in public policy and shape students' experiences, heavily liberal law schools should consider hiring more conservatives if they want to follow the post- Grutter valuation of diversity, said Northwestern law professor John McGinnis at a Federalist Society lecture Oct. 7 about his study of elite legal academia's partisanship.

McGinnis examined campaign contributions by professors from the top 20 law schools during 1991 to 2002, using the Web site opensecrets.org, which tracks federal donations of more than $200. He found that of the 28 to 29 percent who donated, 81 percent donated predominantly or exclusively to Democrats, and 15 percent predominantly or exclusively to Republicans. McGinnis defined "predominantly" as giving at a rate of at least two to one. Among similar demographics in a national survey, contributions slightly favored Republicans.

Scholars who focused on constitutional and international law-who may be most influential on public policy-are as Democratic-leaning as the sample as a whole. Law and Economics professors, perhaps considered a bastion to the right, were two-thirds Democrats to one-third Republicans. Female professors were overwhelmingly Democratic contributors, with 92 percent giving exclusively or predominantly to Democrats. Some professors gave to both parties and a very few gave to the Green Party.

Demographic data shows that giving to Democrats may become even more predominant as older professors, who are more balanced in their contributions, retire. McGinnis theorized that ideological polarization during the Vietnam War era may have caused baby boomers who were unhappy with a market-driven society to seek refuge in academia.

Virginia, however, is an outlier among the law schools he studied. "It is almost equally balanced in Republican and Democrat donors," he said. In contrast, more than 40 percent of Yale's faculty give-at a ratio of 19 to 1-to Democrats. At Georgetown and the University of Pennsylvania, no one gives predominantly or exclusively to Republicans.

Some argue that Republicans are likely to give more at state elections, but data from one state cycle he studied show correlating numbers to federal campaigns, with a 78 to 16 split. The argument that professors gave to Democrats to earn appointments also doesn't hold up under scrutiny, as McGinnis found no significant changes in contributions when congressional or presidential power shifted to Republicans. The theory that Republicans and Democrats don't capture ideology doesn't hold up in today's politics, he said. The top five Democratic recipients were "pretty liberal"-including Barbara Boxer and Paul Wellstone. McGinnis said he did not include donations from colleagues to political figures who served on law faculties. "I didn't think that was a good indication of ideological affiliation, since at least on some faculties I've been on, I would have happily given money to many of my colleagues, even if I disagreed with them, in the fervent hope that they would win," he joked.

While contributions are not party affiliations, he noted that his colleague surveyed the top 100 law schools' faculty party affiliation and found that 80 percent reported they were Democrats and 13 percent Republicans.

Curious about the effects of the ideological tilt, McGinnis examined public letters professors signed, purporting to give their legal views on issues such as pro and anti-impeachment letters for Clinton and a letter opposing the Bush v. Gore decision. "Only four signed a letter that was against the partisan leaning of their party." Many of the professors were not constitutional law professors, which suggests that these letters really are "more a representation of partisanship than expertise."

Politics may also play a role on the reputations of judges. In a ranking of the top 10 Supreme Court justices by professors, four sat on the Warren Court. In a rating of all 107 justices, Justice Clarence Thomas was rated 105th, after being on the Court only two years. Influence on reputation may give professors some marginal ability to move the Court toward their ideological stance, he suggested.

Law professors also "create ideas for the future — they stock a kind of store with ideas," McGinnis said. Liberal leanings in the academy may mean a meek stock of conservative ideas.

His research on amicus briefs showed that in many leading cases, only one side is represented by legal elites, such as in the same-sex sodomy case Lawrence v. Texas, where six briefs were filed by more than 20 studied law professors in favor of Lawrence. In criminal law matters, almost no briefs were filed by the studied law professors in favor of the government, except when requested by the Court. Other key cases, such as affirmative action, still garner briefs on both sides. He did not find any important cases only represented by the conservative side.

McGinnis said his study was part of a larger trend in legal scholarship to examine ideological motives of legal actors, such as judges. McGinnis said he was "simply attempting to turn these tools on the legal academy itself."

Under Grutter's "viewpoint rationale" for affirmative action-that students should be exposed to a broad array of views-schools that have a dearth of Republican professors seem to be obliged to go out and find them, he said. It's difficult to include a variety of ideas "if they have faculty that are ideologically monolithic. Faculty really set the discussion at the schools.

"At all times they are inviting speakers and in many ways setting the intellectual tone of the school." Faculty scholarship may also improve with the aid of in-house critiques by opposing views. But if law schools follow his recommendations and the implications of their public commitments, "some of your beloved faculty members may [be] enticed elsewhere," he warned students.

Law professor Paul Mahoney said he was interested in learning more about whether political views influence professors when they are purporting to speak as experts.

Professor Paul Mahoney responded to McGinnis's talk by evaluating his use of quantitative methods. Empirical methods work best when the hypothesis is questionable, Mahoney said-and few people question that the legal academy is mostly liberal. Mahoney wondered whether the paper's purpose was to conduct a rigorous social science analysis or to get media coverage. "I suspect that on this topic it is probably not possible to do both," he said.

Still, considering that the chairman of Duke's philosophy department has explained the issue away by noting that they hire the smartest people to their faculty, and that conservatives are pretty stupid, Mahoney said "it is a genuinely serious issue for the paper."

He said one question the paper raises offers interesting opportunities for further exploration: whether political views influence professors when they are purporting to speak as experts. A more complete analysis of professors' congressional testimony and amicus briefs could help build a stronger case, Mahoney said, as the selection of only a few open letters does not amount to proof. "Are there other open letters that the paper hasn't told us about?"

During a question and answer session, McGinnis noted that the University of Chicago, often considered conservative law school, was actually more in line with its more liberal peers. The "reputations of law schools tend to lag the reality of law schools." He suggested Chicago's drift down in rankings may be due to the school's drifting ethos; they're now competing with more liberal peers for faculty.

Asked why clumps of partisanship develop, McGinnis pointed to Northwestern, who he said had a cluster of conservative public law scholars. "I think it's largely a function of selection bias," he said. The faculty appointment process is almost always a supermajoritarian one, so candidates can be blocked by relatively few people who are not ideologically open-minded. The "silent majority" may have to come forward to defend neutral hiring. "I think it is very important to have a critical mass of people of a particular ideology-really a conservative ideology-in the schools today."

McGinnis said the rise of conservative think tanks may temper the influence of the liberal legal academy, but think tanks don't necessarily focus on intricate doctrine like professors do. Outside the top 20 law schools there are a few predominantly conservative schools, such as George Mason University, Pepperdine, and some Catholic law schools. McGinnis emphasized that the top 20 were the most influential, however.