Legal Academia: Will the Real Conservatives Please Stand Up?

Does the legal academy suffer from a dearth of ideological diversity? It’s a question raised by the defection of prominent conservative law professors — including Doug Kmiec and now Charles Fried (pictured), who both held top positions in the Justice Department under Ronald Reagan — to the candidacy of Barack Obama.

From a post on Friday entitled “Charles Fried’s Absurd Obama Endorsement,” by conservative law professor Stephen Bainbridge (rhetorically addressing Fried):

Let me see if I understand this. You throw over the beliefs of a life time and vote for somebody who’s arguably the most radical national ticket Democrat since Henry Wallace because you’re having a hissy fit about Sarah Palin? [Ed. note: In explaining his support for the Obama-Biden ticket, Fried cited McCain’s “choice of Sarah Palin at a time of deep national crisis.”]

First Kmiec and now Fried have betrayed the Reagan Revolution. They’ve tossed the principles they purported to hold under the bus to endorse a guy who is the antithesis of those principles and who will burden us with activist judges that will dismantle all the achievements the conservative legal movement won in the last three decades.

Is this a fair critique of Professors Kmiec and Fried? And what do their endorsements say about legal academia?

Read more, after the jump.


Some commenters on Bainbridge’s post defended Fried’s decision to back Obama. Professor Bainbridge responded:

Here’s why I’m infuriated by Fried and Kmiec. I’ve spent the last 25 years as a foot soldier in the conservative legal movement….

So imagine that you’ve been fighting a long war. There are Captains to whom you’ve looked up and for whom you’ve had great respect. And suddenly, just when the going got tough, they deserted. In fact, they went over to the enemy.

Kmiec and Fried have betrayed the movement for which we all fought. It’s hard for me not to regard them sort of the way a Continental soldier would have regarded Benedict Arnold after he turned his coat.

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Regardless of whether one agrees with Bainbridge, one can’t help wondering whether the Fried and Kmiec defections reflect an increasing “liberalization” of legal academia (which was already pretty left-leaning to begin with). Do American law schools suffer from a shortage of ideological or political diversity?

Organizations like the Federalist Society play an important role in fostering intellectual diversity, by bringing conservative and libertarian speakers to liberal law schools around the country. But many of these speakers have to be shipped in from outside the academy — e.g., from conservative think tanks, the DOJ, or the federal judiciary.

Now, don’t get us wrong; we’re not taking a position here, just tossing out a question. We also note that, even if Kmiec and Fried are not among their ranks, many prominent law professors support John McCain for president.

But McCain supporters are still a discrete and insular minority in legal academia. As previously noted, campaign contributions by law profs skewed heavily to the left in the 2008 presidential election: 95 percent to Obama, 5 percent to McCain. Obama may be leading McCain in the latest national polls, but not by a ninety-point margin.

So are U.S. law schools too liberal — and are they growing more liberal over time, with ex-conservative stalwarts backing America’s Most Liberal Senator™ for president? Should there be “affirmative action” for hard-core conservative law professors, to ensure that students will be exposed to a wide range of viewpoints (especially in such hot-button areas as constitutional law)?

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Your thoughts are welcome, in the comments.

P.S. Trivia question, from David Bernstein: Which top law school “has not a single faculty member who is a member of Law Professors for McCain?” See here.

Charles Fried’s Absurd Obama Endorsement [Punditry / Stephen Bainbridge]

Reagan Appointee and (Recent) McCain Adviser Charles Fried Supports Obama [The Plank / TNR]

Endorsing Obama [Convictions / Slate]

Law Prof Presidential Campaign Contributions: 95% to Obama, 5% to McCain [TaxProf Blog]

Law Professors for McCain [Overlawyered]

Some Surprising Information on Law Professors’ Political Commitments [Volokh Conspiracy]

Earlier: Birds That Look Like Law Professors Flock Together