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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.