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Harvard Law Becomes More
Conservative
The Observor (UK)
Anna Schneider-Mayerson
November , 2005
Bradford Berenson doesn't remember Harvard Law School as the most
encouraging place for an ambitious young conservative.
The 40-year-old partner at Sidley, Austin, Brown and Wood in Washington,
D.C., who served in the White House Counsel's office under President George W.
Bush from 2001 to 2003 and has chaired committees for the Federalist Society,
the conservative and libertarian lawyers' group, entered the program in 1988,
in the immediate aftermath of the Reagan-era culture wars.
Back then, he said, it was not unheard of for a student pressing a
conservative line in a class discussion to get hisses and boos from classmates.
He said that a single professor among the 60 or so full-time faculty actively
propounded conservative jurisprudence and politics from the lectern.
"It wasn't that uncommon or unusual to hear the word "fascist' associated
with a mainstream conservative," Mr. Berenson said.
Then, last year, the law school surprised him with a barrage of additions to
the faculty—among them prominent conservative scholars. This year, Mr.
Berenson is "significantly increasing" the amount he is giving to the law
school (though he, like most others interviewed by The Observer, declined to
specify by how much).
"It's hard to say whether I'm trying to send a message, whether I'm
applauding what I see as a worthwhile effort by the law school, or whether it's
just the more straightforward feeling that as a place that seems to welcome and
value the contributions of people with different points of view, that the law
school deserves more support," he said.
He, like others, had little difficulty offering much of the credit for the
phenomenon to Elena Kagan, the 45-year-old dean of Harvard Law.
"In Dean Kagan, Harvard has found somebody who genuinely values intellectual
and viewpoint diversity," said Mr. Berenson. "[Conservatives have] gone from
feeling excluded to included."
Ms. Kagan herself is reluctant to characterize her deanship as a break from
Harvard's past.
"My view of Harvard is that because we are a place that is larger in scale
than a lot of other schools, we've never been a niche place," Ms. Kagan told
The Observer. "We sort of have everything, and that continues to be true in our
current hiring. Our current hiring is all across the board from a
political-slash-ideological perspective, and that's exactly what it should
be."
But among current students, alumni and faculty, the difference between
Harvard Law School today and in 1988 is palpable, even if among the school's
officials, the change is unspoken.
"Once you start hiring a lot of people, you can no longer allow any group or
faction to put in a political veto, and you've just got to hire the best
people," said professor Charles Fried, the law school's most outspoken
conservative. "That's what happened …. People aren't stupid: All she
said was that we have to do some hiring. That means we've got to stop blocking
…. She did not mention politics; she's too smart."
"It's news that we're normal," Mr. Fried also said. "It's the opposite of
strange. What was happening before is strange."
President Bush's two Supreme Court nominees have brought a lot attention to
the Harvard and the Yale law schools, the equivalent of the spotlight placed on
Miami and U.S.C. around the time of the N.F.L. draft.
According to professors and students, Harvard Law alum Chief Justice John
Roberts' nomination found little visible opposition at his law school. He had
the perfect Harvard résumé: graduating summa as an undergrad,
then serving as managing editor of the Law Review and clerking with Henry
Friendly, the né plus ultra of Appeals Court judges. Minutes after the
President announced his selection of Mr. Roberts, the Harvard Law School Web
site crowed about the accomplished alum, complete with a beatific A.P.
photo.
Yale Law graduate Samuel Alito received similar treatment on the Yale Law
School Web site, but the tenor of his support has been overshadowed by the
widespread dissemination of a recent New York Times article describing the
active opposition to his nomination among students and faculty.
There have always been substantial differences, both real and perceived,
between Yale (the perennially top-ranked law school) and Harvard (No. 2). Yale
is known as an intellectual seminary, where the professors are the priests.
Yale has about a third of the number of students in each class, and they
receive no grades. Harvard has one of the largest student bodies of any law
school in the country, is credited with pioneering the "Socratic method," and
historically has prepared its students for establishment corporate and
private-sector careers as well as government and academic ones.
But as the Bush administration succeeds in dramatically changing the
political configuration of the Supreme Court, and as the conservative legal
network grooms impeccably qualified scholars, both Harvard and Yale are seeing
increased pressure to admit conservatives into the academic fold. But it's at
the larger school, Harvard, that conservatives are taking notice of the
shift.
There's a small but highly visible coterie of conservative Harvard Law
School alums currently serving in the Bush administration: including Attorney
General Alberto Gonzales, Republican National Committee chair Ken Mehlman,
Deputy Secretary of State Robert Zoellick, deputy White House counsel William
Kelly, Homeland Security chief Michael Chertoff and Solicitor General Paul
Clement.
According to Mr. Berenson, the Harvard Law Review has invited Mr. Clement to
speak at its spring banquet. What's more, nowadays it's hard to see him
refusing. But Law Review president Brian Fletcher declined to comment, and Mr.
Clement didn't return calls.
Culture Wars
For a seemingly interminable stretch from the 1970's to the 1990's, Harvard
Law was emblematic of academic ideological warfare, its infighting aired like
dirty laundry in Eleanor Kerlow's 1994 book, Poisoned Ivy, its campus derided
in a 1993 article in GQ as "Beirut on the Charles."
Members of Harvard's Critical Legal Studies school attacked the
traditionalists, arguing that their approach perpetuated a ruling class in
America. The traditionalists struck back, led by Ms. Kagan's predecessor,
Robert Clark. In 1985, at a debate before alumni in New York, Mr. Clark charged
that the C.L.S. adherents were engaging in "a ritual slaying of the elders."
(Every alumnus in the country reportedly received a transcript of his talk,
courtesy of the Federalist Society.)
Among faculty members, lateral hiring and tenure decisions became more
charged—and less conclusive—than confirmation hearings. Mr. Clark
was ultimately compelled to bring in a retired law professor, Roger Fisher, to
keep the peace among the warring factions.
His previous work included negotiating between rebels and the government in
El Salvador and South Africa.
In the early 1990s, the school's most senior black professor, Derrick Bell
Jr., took a leave of absence to protest the fact that no minority women had
been given tenure. He ultimately quit. In 1998, Lani Guinier was the first
African-American woman to be given tenure.
As John Sedgwick wrote in the GQ article, "politics are like a too-heavy oil
that, instead of lubricating, has gummed up the works at the
school—slowing everything down and heating everything up."
Students eagerly joined the front lines. There were sit-ins to protest
faculty diversity and an investigation into charges of racism at the Harvard
Law Review.
Tensions exploded when students released a parody of feminist law professor
Mary Joe Frug's writings—on the anniversary of her still-unsolved murder.
Ms. Frug, who taught at the New England School of Law, was married to C.L.S.
advocate Gerald Frug, a Harvard Law professor, and had founded a spin-off of
the movement, "the FemCrits."
Finally, in the late 1990's, McKinsey and Company was retained to study why
students at Harvard Law were so unhappy. In December of 2000, the faculty
adopted a strategic plan based on the results of that research, which had been
expanded to review faculty concerns as well. It called for reducing first-year
class size, expanding the loan-forgiveness programs and beefing up the
international-studies curriculum, among other objectives.
The following year, Harvard got a new president in Larry Summers. In 2003,
shortly after appointing Ms. Kagan as dean of the law school, Mr. Summers gave
The New York Times Magazine a sense of his view of Harvard Law's recent
history.
He said that the law school had made a series of "idiosyncratic choices" in
the awarding of tenure. He further criticized the school, citing "some of the
concerns about inbredness, political correctness, lack of intellectual energy
that were seen on the outside."
To show how serious he was about reform, he announced that he would be
extending his presidential powers to include the right to veto proposed tenure
offers. (He has not exercised that option.)
The year that Ms. Kagan started, the law school officially kicked off its
$400 million fund-raising campaign (with its oddly conservative-sounding
moniker, "Setting the Standard") in order to fund some of the initiatives
outlined in the strategic plan, including adding 15 professors to help lower
student-faculty ratios.
"In its search for new professors, the Law School will maintain its
commitment to scholarship at the highest levels, and the need to offer an
increasingly diverse student body the opportunity to be taught by an
increasingly diverse faculty," notes a thumbnail description of the plan on the
law school's Web site.
While no overt reference to the school's notoriety in the 80's and 90's was
made, one line—which could have been borrowed from the liberal agitators'
phrasebook but appeared to have a very different political
valence—described the plan's loftiest goal.
"Above all, the School must continue to be a metropolis, rather than a
village," reads the brochure describing the campaign.
Mr. Summers—recent controversy notwithstanding—is himself seen
as a liberal, and so is Ms. Kagan. Mr. Summers had worked with her on occasion
when they were both officials in the Clinton administration. So conservatives
saw little to be enthusiastic about in the appointment. Ms. Kagan was a former
domestic-policy and legal advisor to the President, and served as a law clerk
to Supreme Court Justice Thurgood Marshall.
President Clinton even nominated her to serve on the influential D.C.
Circuit bench, only to see the Republicans in the Senate dawdle over bringing
her candidacy to a committee vote. (Ms. Kagan is the first woman to serve as
dean in the school's 188 years.)
She inherited the law school from Mr. Clark, a philosopher and scholar of
corporate law who was also a prolific fund-raiser.
What has followed is a hiring spree: 20 offers to full-time professors have
been extended—with nine acceptances so far, according to Michael Armini,
the school's director of communications. There are currently 81 full-time
professors at the school, the same number as when Ms. Kagan joined, mostly
because of retirements.
According to John Coates, a corporate-law professor, the hiring logjam has
been lifted because the "false sense of scarcity has been eliminated."
"I think, in the past, there was this dynamic where people were sometimes
supporting and sometimes opposing for reasons that didn't have as much to do
with the merits, but had to do with the sense of limited budget," said Mr.
Coates, who joined the faculty in 1997.
Of the nine new professors, six have been appointed with tenure. To the left
of center are environmental-law expert Jody Freeman, from UCLA, and Daryl
Levinson, a constitutional-law theorist.
But recent hires have also added to the conservatives' ranks. There is John
Manning, 44, an expert on the separation of powers and the structure of
government, who advocates for a strict reading of the U.S. Constitution, and
43-year-old Jack Goldsmith, an international-law expert known for questioning
the efficacy of the International Criminal Court.
Both are highly regarded scholars and former Republican administration
officials (Bush I for Manning, Bush II for Goldsmith). They declined to
comment.
In addition to Messrs. Manning and Goldsmith, joining next year is Adrian
Vermeule, a constitutional, statutory-interpretation and administrative-law
specialist who takes a social-science approach, reading empirical research and
looking for counterintuitive solutions. Mr. Vermeule is currently at the
University of Chicago, where he has won various teaching awards. He has written
about constitutional issues in the context of national security, arguing that
restricting some liberties isn't at odds with the freedoms Americans enjoy,
that people overreact in what he calls "libertarian panics." He has also argued
for the death penalty on "pro-life grounds," citing studies that show it deters
would-be killers. Yet he has also criticized some of what others see as the
court's conservative activism.
To be sure, new appointments have gone to scholars with approaches and
fields of study all over the map, and about half of the 20 recent offers have
been to people on the liberal-to-left spectrum. Like Mr. Vermeule, the rest are
hard to classify.
Four junior professors—election-law expert Heather Gerken and
local-democracy specialist David Barron, who worked in the Clinton
administration, as well as corporate-law scholars Guhan Subramanian and Allen
Ferrell—have also received tenure since Ms. Kagan took over.
But even this ratio is newsworthy. A much-talked-about study in The
Georgetown Law Journal analyzed 11 years of federal-election campaign
contributions and found that of those faculty members who gave more than $200,
91 percent and 92 percent at Harvard and Yale, respectively, gave to Democrats.
The average for 21 top law schools was 81 percent for Democrats.
What might have once been seen as an assault on the school's values has been
turned into a point of pride, according one Harvard Law School source, with
professors heralding their willingness to make the recent
hires—especially Messrs. Manning and Goldsmith—as proof of their
liberal, tolerant mindset.
Which is precisely the point on which Ms. Kagan has successfully lobbied: It
would be anti-intellectual to shut down the candidacy of a qualified
conservative.
"We don't look at politics," Ms. Kagan insisted. "We figure that if we
really go for the people who are doing the most interesting scholarship and who
are the best teachers, we'll get a pretty wide political
cross-section—and indeed we have. We're just looking for the best people,
the best scholars, the best teachers."
The effort has not been without its small struggles. There was a political
flare-up when Mr. Goldsmith joined the faculty last fall, with faculty members
airing their concerns about his alleged involvement with the infamous "torture
memos" in The Boston Globe.
And when it later emerged that Ms. Goldsmith had, in fact, resigned because
he objected to the administration's permissive lines on torture, not all of his
critics were placated. They saw echoes of the administration's position in his
scholarship, which argues that that the United States isn't always bound by
international law.
It was Ms. Kagan's public support of Mr. Goldsmith that effectively quelled
the outcry.
In Mr. Manning's case, it emerged that the changes at Harvard Law are hardly
happening fast enough for some students.
When Mr. Manning joined the campus, the student-run Harvard Law School
Record ran an editorial in support of his hiring: "At HLS, you can count the
number of actively, politically conservatives [sic] on one hand and still have
enough fingers left to flash a peace sign. On a campus filled by hundreds of
instructors, is this really sufficient diversity?"
Sufficient or no, Harvard Law has changed since the days when, as Mr.
Berenson put it, "[Reagan Solicitor General] Charles Fried was the only game in
town."
Students and faculty point to professors who have tipped their hats to
conservative causes: Mary Ann Glendon, an anti-abortion feminist; law and
economics scholars like Steven Shavell and J. Mark Ramseyer, on the basis that
they're believers in free-market economic concepts. Einer Elhauge, an antitrust
expert who litigated on behalf of the Republican-dominated Florida legislature
alongside Mr. Fried in Bush v. Gore.
"We Don't Recruit'
When the Harvard Law chapter of the Federalist Society hosted the
organization's annual student symposium in February, hundreds of law students,
academics and lawyers filled the chandeliered Grand Ballroom of the Marriott
Hotel in Cambridge, Mass., to hear a talk by Judge David Sentelle, a
conservative member of the U.S. Court of Appeals for the District of Columbia
Circuit. Dean Kagan introduced the judge.
"I love the Federalist Society," she announced, "but you are not my
people."
The crowd laughed. It came as no surprise that Ms. Kagan wouldn't feel
kinship with the Feddies. (Moreover, Judge Sentelle headed the panel that
appointed Ken Starr as independent counsel.)
And yet there she was, supporting the society. It was a powerful symbolic
gesture, one that conservative students still cite when they gush about the
dean.
"I just thought it would be funny to a little bit note what everybody knew,
which is that"—and here Ms. Kagan allowed herself a chortle— "this
was not the student group I was involved in. But at the same time, to express
my appreciation for what they do— for what they do in the law-school
community and otherwise. These are highly committed, intelligent, hard-working,
active students who make the Harvard community better, just like the American
Constitution Society makes the Harvard community better. I don't have to share
your politics to understand that Harvard Law School is a better place because
you do the things you do here."
Ms. Kagan's quip may have been a backhanded compliment. But it says a lot
about the political temperature of the campus that, later, the Federalists were
so heartened by her one-liner that they emblazoned the quip on the back of
their chapter's T-shirts. Her jokey but eminently cool embrace felt like a big
bear hug. Or at least they wanted to spread that impression. (Said Jeffrey
Jamison, president of the American Constitution Society, the Federalist
Society's liberal counterpart: "They celebrate their victories every time they
can get them, because they feel that they're oppressed.")
"She's been very, very friendly to our chapter—a great friend,"
explained Matt Cooper, a third-year student and Federalist Society chapter
president. "What I would say is that Harvard Law School has traditionally been
an unfriendly place for conservatives. It's changed. I wouldn't say it's
friendly and welcoming, but it's certainly not hostile to the extent that it
once was."
Yet Mr. Cooper added that, as part of the admissions office's outreach to
most of the student groups, he was asked if conservatives had an accurate
picture of the community at Harvard before they enrolled. He answered no, that
most conservatives had an impression they would be in a very small minority,
and that most were surprised to discover such an active conservative student
movement. Mr. Cooper sensed that the official wanted to pass that information
along to applicants.
That wrong impression is "something they want to remedy," he said.
In a promotional brochure that Harvard distributed to accepted students this
past spring, one of six students featured in a full-page spread was Lawrence
VanDyke, class of 2005. A quote accompanied his picture: "The size of this
place means that you're going to find your niche, and you're not going to be
the only person in that niche. I'm involved with the Federalist Society here
and while it may be considered a minority group on campus, it's a minority
group of 200-plus people."
(In fact, according to Mr. Cooper, the Federalists are 350 strong, the
largest branch in the country.)
The pamphlet was written by Mr. Armini, the law school's director of
communications. He interviewed a bunch of Law Review members who were around in
the summer of 2003. "I remember that his quote worked because it stressed the
'bigger is better' theme," Mr. Armini wrote in an e-mail.
The dean disputed the notion that they were trying to recruit conservatives.
"We pay zero attention to this in the admissions process. Zero. There's just
nothing going on like that," she said.
Indeed, Ms. Kagan and other faculty members, at Harvard and elsewhere, said
they doubted that students used ideological litmus tests to determine where
they should attend law school.
But the perceived liberal bent at Harvard does get raised as a concern for
entering students, conservatives said. "As a student here talking with admitted
students, that is a question I'm asked a lot: "How will we feel as
conservatives?'" said Soraya Freed, an officer with the Federalist Society.
Ms. Freed said she was encouraging. "I don't think there's a better school
for conservatives right now," she asserted.
As with the hires, Ms. Kagan said there has been no favoritism to any
particular group of applicants—that, if anything, what students have
responded to is her effort to make the campus more collegial and
student-friendly.
This year, her office is sponsoring a debate between the Federalists and the
A.C.S. (in the past, the groups held separate events). She's improved amenities
to make the austere campus more like an upscale office complex. The gym and
other student spaces were renovated; there's free coffee in one of the main
buildings and complimentary tampons in the bathrooms; and she even established
an outdoor ice-skating rink on one of the main quads.
There are practical effects to having more conservatives on campus. They
serve as mentors, helping to shuttle students into jobs; they also serve as
public intellectuals, emissaries and recruiting directors.
They also help to attract continued interest from the increasing number of
the school's prominent conservative alumni.
Finn M.W. Caspersen, class of 1966 and a fund-raiser éminence grise
for Harvard Law, is the chair of the school's current $400 million fund-raising
campaign.
That Mr. Caspersen, the former head of one of the largest consumer-lending
companies, has endowed two professorships at the law school and considers
himself a small-government conservative would seem to be evidence enough of the
school's interest in its relationship with conservative alumni.
But Mr. Caspersen said he hadn't found that politics was a factor in alumni
giving.
"That's not a decisive reason in most people's minds about whether they want
to give," he said. "Of course I've talked to the people who give
money—people don't volunteer funds."
Still, he acknowledged that changes at the school—especially the hires
led by Ms. Kagan—broadened the school's appeal as a charity to its
alumni.
"I think it's a healthy thing. Whether it's going to open a nirvana for
fund-raisers—that's a whole different thing," he said. "It can't hurt,
let me put it that way."
Off the record and outside of the school's official development circles,
things are put a little more bluntly.
"I've had zillions of conservatives alums saying to me how great they think
Elena is for doing this," said one professor.
"There has been a lot of talk about it, because it's such a dramatic break,"
said Douglas Cox, H.L.S. class of 1980, a partner at Gibson, Dunn and Crutcher
in D.C. who worked in the Justice Department during the Reagan and Bush
administrations.
"I think Dean Kagan's hiring positions … are a little bit like the
"Nixon in China' phenomenon," said Mr. Berenson. "The reaction has really been
electric."
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