Sep 13, 2012

Posted in Uncategorized

SCOTUS Holmes: Which conservative law prof got rejected by the Harvard Law School Human Rights Journal because of his politics?

David Lat excerpts some leaked emails from the editors at the Harvard Law School Human Rights Journal. One comment rejects a piece because its author is conservative:

 In addition, I am a little concerned based upon [Author D]‘s CV. He is incredibly conservative, clerked for [Conservative Justice A], worked in the White House under Bush, questioned [Liberal Justice B] during her confirmation hearings in Congress, and has written critically on [Liberal Justice C] in the wall street journal. Maybe that background isn’t important to all of you and I understand the need to have HHRJ be open-minded buuuuuuut, yeah, doesn’t make me want to take this article.

OK who is it? I don’t have any inside information, but through process of elimination, I’m pretty sure it could be narrowed down.

The fact that the student lists the SCOTUS clerkship first, and employment in the Bush White House second may suggest that the clerkship happened before the White House Gig. If this is the case, it will almost certainly have been with Scalia or Thomas, as Roberts and Alito were not appointed till much later in the administration–but it’s possible. If this person also criticized Sotomayor or Kagan during the confirmation hearing, I’m guessing it would be someone who has been in the academy for some time–you don’t do this when you’re young. So I will assume it is someone who clerked for Scalia or Thomas at some point in the 1990s, and then worked in the early Bush Administration. Then joined the Academy somewhere in the early 2000s, so by 2009/10 when Sotomayor and Kagan were up for nomination, the Prof would have enough gravitas to get some ink on WSJ (not just anyone gets that).

So my guess is that it will be some law prof who clerked for Scalia or Thomas in the 90s, worked in the early Bush Administration, and joined the Academy in early 2000s. How many people fit this mold?

The following people spoke out against Sotomayor during her confirmation hearing: Peter Kirsanow, Lisa Chevz, Franc Ricci, Charmaine Yoest, Sandy Froman, David Kopel, and Ilya Somin opposed the confirmation. Neomi Rao, John McGinnis, and Nick Rosenkranz gave testimony, but did not actively oppose or favor Sotomayor’s Confirmation.

Neomi clerked for Thomas from 2001-2002, worked in the White House Counsel from 2005-2006, started teaching at GMU in 2005, and wrote a WSJ op-ed attacking Kagan. That’s pretty close to my profile.

Nick Rosenkranz worked in OLC, and clerked for Kennedy, but that is a weaker fit.

So my guess is that Neomi, my friend and former professor, was tragically rejected by this journal for her political views. Eugene comments here. I agree that is very unfortunate.

Update: Justin and Andrew point out in the comments that my post suggests that the article was rejected solely because of the author’s politics, rather than based on a host of factors, including politics. They are correct. As the commenters point out, the author’s politics were considered “in addition” to other aspects of the article. That tells us that politics were considered as one of several factors. To clarify, what led me to write the post as I did was the last sentence of the excerpt: “Maybe that background isn’t important to all of you and I understand the need to have HHRJ be open-minded buuuuuuut, yeah, doesn’t make me want to take this article.” That is, notwithstanding these other positive aspects about the article that may make me want to accept it, the author’s background would be the main factor in rejecting it.  In other words, I’d consider taking it buuuuut the author is a conservative. However, we do not have the full record of what happened, and the fairest reading, as the commenters point out, was that the article was rejected in part based on the author’s politics. I don’t think that politics was the sole factor in any sense, and I didn’t say “but for” or “solely” (perhaps proximate cause?). But I can see how my post could be so construed, so I post this clarification.

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  • TJ

    Except Neomi is a “she,” and one would expect the editors to be able to tell from her name that this is so.

    • http://joshblackman.com/ Josh Blackman

      Ah, good point TJ. The only other male who fits my profile (which may be wrong) would be Nick Rosenkranz, who is certainly a he.

  • JustinVC

    Also, I think the title and tone of this post is misleading. As [Edited] Eugene Volokh [/edited] pointed out, and as your own excerpt indicates (“In addition”), the politics of the author was only one of many reasons for rejecting the piece. His piece was rejected “in part” because of his politics, not “because of” his politics. While that doesn’t make this a non-issue, one should expect a law professor to be more precise and nuanced when dealing with these issues [edited].

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the comment. I posted an update to the post.

    • richard40

      Face it, that particular email was incredibly biased in suggesting an article should be rejected because of the politics of the author, without referencing any problems in the actual article. I would hope this particular law review editor does some hard thinking on how his obvious idealogical bias is affecting his judgement. I am also disturbed that no other editors objected to this email, or expressed concerns about it, and several even agreed with it. That suggests that this kind of idealogical bias is accepted and approved of within that body. Certainly, if I was on an editorial board, and somebody said an article should not be accepted because of the race of the author, I would vigorously object that it should have nothing to do with it. neither should the authors idealogical associations have enything to do with it, onlythe quality of the article, and evidence that the author has real scholarly experience, whether with conservatives or leftists.Given all that, we cannot be certain the decision to reject the article was itself biased, because there might have been other legit reasons. But we know for certain that at least some people in the process are clearly idealogically biased, and that nobody else in the process objected to that idealogical bias. What I want to know is whether you personally regard that kind of idealogical bias to be acceptable.

  • Dan

    I’m not sure why you rule out Rehnquist or Kennedy as potential Justices.

  • Robert Woods

    Congrats on getting a link from Instapundit

  • AndrewMacKieMason

    “JustinVC” makes a good point, and one that should be reflected in an edit to the other post. The title and other bits of this post suggest that but for the politics, the piece would have been accepted. That’s not at all clear from the evidence.

    • http://joshblackman.com/ Josh Blackman

      Thank you for your comment. I posted an update to the post.

  • Andrew Berman

    I think it’s fair to say that someone who openly writes that he or she is disinclined to accept an article based on the politics of the author is likely to judge the article itself more harshly than usual. Reviewers of the journal have a position of honor and prestige. They are clearly not acting in accordance with the position. Why give them the benefit of the doubt?

  • Andrew

    I think it is more likely that the title of the article is closer to the truth than it is inaccurate. Human nature tells me that the “other factors” become much more prevalent when the reviewer has such strong opinions against the views of the author. Why do you think law school finals are anonymous?

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

  • Ilya Somin

    FWIW, it wasn’t me. I am not a conservative, have never submitted an article to this journal, and did not work in the Bush administration or clerk on the Supreme Court (as this person apparently did).

    • Kommon_Knowledge

      ROFL “I am not a conservative”

      Because you’re a “libertarian.”

  • anony

    I’d be surprised if Rosenkranz ever submitted to this journal. He doesn’t churn out a ton of papers, and what he writes is almost invariably in Harvard or Stanford. Indeed, his bio even says “he writes articles for the Harvard Law Review and the Stanford Law Review.” Keep digging.

  • http://www.lawfficespace.com/ Phil Miles

    Why are you ruling out Rehnquist, O’Connor, and Kennedy? (Edit: as the Justice for whom the author clerked)

  • Kommon_Knowledge

    Your update reflects a reading that is completely opposite of what the text actually says. All it says is that the author’s conservative politics “do not make me want to take the article.” As in, they are not a positive factor. It does not say it is a negative factor at all. Your claim that that means “notwithstanding these other positive aspects about the article that may make me want to accept it, the author’s background would be the main factor in rejecting it. ”
    is completely without basis.

    • richard40

      Why should it be a factor at all, and why should it even be brought up. And we know the game, saying xxx does not make me favor this article, is a polite way of saying xxx makes you want to reject it. The only way this comment would not indicate idealogical bias would have been if somebody had first suggested the conservative politics of the author was a reason to accept, and this email replies that it should not be a factor. Face it, this email clearly indicates idealogical bias. Stop making excuses to cover for it. I wonder what you would have said if some conservative journal had said “the authors race does not make me want to accept this article”, without then following up by saying race should not be a factor, positive or negative. Face it, your guys got caught using idealogical bias in their decisions as editors.

      • http://joshblackman.com/ Josh Blackman

        The interesting range of comments here reminds me of trying to ascertain improper motives in an employment discrimination case. Often, the parties are left with fragments of communication (perhaps a single email in isolation that was coupled with offline communications), and the opposing sides have to peel through various layers of pretext and motivating factors to determine if a decision was made based, in some part, on a prohibited basis. Ultimately, this single email can be construed in various ways, depending on a person’s starting assumptions. Ironically, perhaps, liberals tend to be more willing to read improper motives in employment discrimination cases, while conservatives are not. Here, when the potentially-discriminated group is a conservative, the tables are turned.

        • Kommon_Knowledge

          We don’t even have a single email. We have a fragment of an email. David Lat is trolling everyone by generating fake controversy by leaving out the substance of the comments.

        • richard40

          You just made a good point. Personally I would prefer not to even have anti discrimination law, and let people hire who they wish, and let the market and the public punish biased and bad hiring decisions. And if we do have to have anti discrimination enforced by gov, you should not use numerical hiring disparaties as any indicator of discrimination, only actual discriminatory comments, or decisions in specific cases, like the idealogically discriminatory comment in this article. My main reason to bring it up is to show how the leftists dont follow their own rules. They would be the first to hop on even the barest hint of discrimination if it is one of their special favored groups, but care nothing about provably overt bias or discrimination against groups they do not care about or dont like. By the way, my other comments also say this email does not prove discrimination, since he might have been denied for other legit reasons, but it does prove the bias of the person that wrote it, and since it was not objected to it proves that bias was accepted within that oganization.

      • Kommon_Knowledge

        “my guys”? These aren’t “my guys” by any stretch of the imagination. I’m simply pointing out that people are saying things that are directly contradictory to the portion of the incomplete text we actually have access to.

        Besides, bias-free law journal editors? Have you ever been published in a law journal or even been to law school? There are law journals like Unbound: Harvard Journal of the Legal Left (obvious) and The Texas Review of Law & Politics, whose slogan is “The Unfettered Pursuit of Conservative Legal Scholarship.” The idea that you’d expect bias-free article acceptance is just ignorant.

        And you seem to have missed my entire point: the author’s ideology was not a factor in rejecting the article. That’s the difference between “X does not make me want to accept Y” and “X makes me want to reject Y.” The former is precisely what you’re asking for: a statement that X is not a factor in deciding Y.

        In other words, I’m not who you think I am, you’re imagining a rule that isn’t real, and you haven’t even found a violation of it anyway.

        • richard40

          If a law journal presents itself, in its title or description, as explicitely liberal or conservative, then I would expect viewpoint bias, and would not object to it. But the last time I heard, respecting human rights was not something that just conservatives or just liberals do, so viewpoint bias in a human rights law journal is another matter. We dont realy know whether the authors idealogy was a significant factor in rejecting the article, the only thing we do know for certain is at least one editor thinks having conservative idealogy is a possible reason, among others, not to publish, and nobody contradicted this bias.

          • Kommon_Knowledge

            Again, no, no, no.

            “the only thing we do know for certain is at least one editor thinks having conservative idealogy is a possible reason, among others, not to publish”

            Why do people insist on moving words around to fit their narrative?

            The sentence says “does not make me want”

            The sentence does not say “makes me not want”

            Those are two completely distinct statements. I weep for America if you can’t understand the difference.

            And if you don’t think “human rights” connotes viewpoint bias towards left-wing, I have 3 words for you: lol.

          • You Must Be Joking

            Are you kidding me with this? Yes, there is a technical distinction between those two sentences that, in isolation, means that they could potentially have different meanings. But this is in the context of deciding whether or not to accept a law review article. When reviewing articles for publication, I certainly never inserted irrelevancies. I didn’t list a bunch of positive and negative factors, then say “their choice of font does not make me want to take this.”

            It is clear that the only reason to bring it up at all, phrasing it as
            “does not make me want” is to cast the author’s conservative background as a negative. Especially with the preceding “Maybe that background isn’t important to all of you and I understand the
            need to have HHRJ be open-minded buuuuuuut”. If you can’t understand why that implies that the conservative background of the author makes the editor affirmatively not want to accept the article, then I weep for America.