November 13, 2005

posted by Daniel J. Solove

If the law school comes down harshly, the school as a whole certainly doesn't. Amid the flurry of headlines reading, "Bush names new nominee," the Yalie Daily ran, "Law School Alum Nominated". The doctrine of Eli Exceptionalism runs strong.

Well, to be sure, the school owes its alums no special support, beyond whatever benefit its degree is supposed to confer. But the point here, really, isn't about some special bond between students and the institutions that educate them, but rather that Alito, like Bork and Thomas before him, is a Supreme Court nominee, and, it's reasonable, and indeed obligitory, for the nation's supposedly "best" law school to express an "educated opinion" on whom should be allowed to sit on the nation's highest court.

And PR savvy Yale--which pads its U.S. News ranking by aggesively encouraging applicants it will in fact reject--will be sure to get its publicity out of the fact that Alito has been nominated--regardless of where anyone at the school will come down on the nomination. Today's NY Times piece (written by a Yalie) is just part of the effort.

I wonder if the Yale law students had as their inspiration the Princeton student protests during the filibuster negotiations. That was an effective protest, and it did receive extra attention because of Frist's connection with Princeton (recall the protest started at the newish Frist student center).

I would love it if some young, smart, visionary law students started a campaign that caught the imagination of the public.

Lord knows Ralph Neas, Nan Aron, et al. aren't going to do it, no matter how well-intentioned they are. They make themselves too much a part of the story (look up some of the longish profiles of these people in the WaPo or NYT).

I love this wording: "Is Yale Law School supposed to support every graduate nominated for the Supreme Court ...." as if there are so many to support that, well, geeze, it'd be next to impossible for Yale to do so. ;^> Seems to me an institution ought, as a matter of loyalty, to support and encourage extraordinary alum's accomplishments. Which would include a nomination to the Supreme Court of the United States.

Law schools expect alums to be loyal, by, say, returning to judge moot court competitions or by giving money. (Or, perhaps, by making calls on behalf of another alum or current student.) I'd think the expectation of loyalty should work both ways.

Of course, there are extreme examples where loyalty would be inappropriate. If Harriet Miers had graduated from YLS, then no one would expect the school to support her merely because she's an alum. But when an alum is (more than) qualified for a position, then the school should support the alumn.

Why is expecting a small measure of loyalty from one's alma matter controversial?

Mike,

I'm not sure exactly what you mean. What should a faculty member at Yale do? Support Alito when he or she is opposed? Merely blunt his or her criticism of Alito?

What does it mean for an institution to support Alito? Faculty aren't speaking for the institution. My views on this blog, for example, are not GW Law School's positions. I'm not sure what GW Law School's position on any issue would be unless the faculty took a formal vote and the school issued a formal statement to the effect that "this is the official position of the law school, as approved by a majority of the faculty."

Thus, I have a hard time saying that the views of many professors at a school constitute its institutional position. I have a hard time saying that faculty members should alter their expression of their personal opinions to promote any kind of institutional position.

And I agree with Will Baude that the opinions of the professors and students at Yale Law School should not carry any special weight.

But if you're suggesting a "small measure of loyalty," what does this mean for a faculty member or a student (or a former student) of Yale Law School with regard to Alito?

Dan, in your latest comment you wrote: "What does it mean for an institution to support Alito? Faculty aren't speaking for the institution." Yet in your post's lede, you wrote: A New York Times article queries whether Yale Law School has been institutionally too harsh to its former professors and alumni who are nominated to the U.S. Supreme Court."

The line between when a professor or student organization is speaking for the school is not is sometimes blurry. I'm not being snarky. It does seem that, when professors and students speak out against someone, without a counter-balancing view from the official administration, that the professors are speaking for the institution.

Also, you ask: "What does it mean for an institution to support Alito?" The "institution," as I understand it, would include the administration and those with the actual power to speak on behalf of the organization. Law school administrators should simply say: "We're proud of Samuel Alito (class of whatever), and we hope he is confirmed. We encourage our student body and professors to decide for themselves whether Judge Alito should serve on the Supreme Court. But it's the law school's official position that Judge Alito be confirmed."

Ben Stein wrote the second of two columns about whether he should continue to give money to Yale Law school, seeing as how Yale's endowment now exceeds ten digits and is growin gby leaps and bounds. He said:

"There are ties that are more than rational, more than sensible. They are the mystic chords of memory to which Lincoln referred. ... I'll keep giving to Yale, and with a full heart, for the memory of Henry Varnum Poor and the many other kind souls of New Haven. Not everything is about reason."

A fund raiser's delight that column was. So here is the question, should Yale want its alumni to evaluate its fund raising requests through the golden glow of nostalgic memory, while it evaluates them through the cold eye of hyper-partisan liberal politics. Should it ask only for mercy and give only justice? Is that going to work on a long term basis?

I agree with Dan that there should be no particular response expected from any individual faculty member. The only reason the article got so much press throughout the country, however, is that the people, I think, expect there to be a thumb on the scale in favor of an alumnus/a. It is a story if the alma mater disassociates herself from the nominee; not so if she's in his corner.

Seen in that way, it somewhat misses the point to say that individual faculty have no obligation to support Judge Alito. Of course they don't, but then why do we care what they have to say? That the majority of the students and faculty at Yale are not enthusiastic about a Republican Supreme Court nominee is hardly a shock, and is worth column inches only if one hopes to argue that "even his alma mater doesn't want him confirmed."

What is the value of a diploma? Does a Yale diploma mean anything? When Clarence Thomas graduated from Yale, he had a right to assume that the institution would stand behind his education as he pursued his career. Despite his diploma on the wall attesting to his completion of the Yale Law education, he was forced to answer attacks on his intellectual abilities by the Yale Law School.

Did the faculty have the right to questions his positions? Absolutely
Did the faculty have the right to insinuate he was the village idiot? Absolutely Not