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Bench Memos

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Counting Sheep



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In his testimony before the Senate Judiciary Committee on Thursday, Jack Goldsmith engaged in an interesting back and forth with Sen. Jeff Sessions (R., Ala.) during which he questioned the assertion that only three of Elena Kagan’s 43 faculty hires at Harvard Law School were conservatives. I’ve copied the relevant exchange below. I was a law student at Harvard during Kagan’s tenure as dean. It is possible that she hired more than three conservatives, and if the additional conservatives were afraid to express their conservative views in public, for fear of retribution or challenges in the tenure process, it is likely that Goldsmith — a member of the faculty — would have heard from them before I did. But I don’t know who they are and trust many of my colleagues would be equally puzzled by this portion of Goldsmith’s testimony. Even if his generous estimates are correct, that still means the law school is considerably less “diverse” than the rest of the nation.

SESSIONS: Now, are you aware of any other recognized conservatives who were hired under her tenure?

GOLDSMITH: Well, we don’t really think about, as much as people outside the law school do, about conservatives and nonconservatives, and I don’t know the political or legal views of a lot of my colleagues. I do think its misleading if you’re implying that only three conservatives were hired in her tenure.

SESSIONS: Yes, I’m implying that.

GOLDSMITH: Yes, sir. I don’t — I don’t think that’s accurate.

SESSIONS: Three out of 43.

GOLDSMITIH: I don’t think that’s accurate, sir. I think you have the numerator wrong. The reason that I would say that — the reason that Vermeule and Manning and I are picked out is because we were right about legal issues and public law, and we were taken to have a conservative stance on that, but I don’t believe the numerator is accurate.

SESSIONS: Maybe you’re right. OK.

GOLDSMITH: And I would also say that, you know, there were a whole range of hires — right, left, and center of all stripes. And I don’t know, and I don’t really care about the political affiliations of . . .

SESSIONS: Well, there are not many known, out of the hundred- and-some-odd faculty, conservatives other than you three.

GOLDSMITH: No, sir. I would disagree with that as well.

SESSIONS: Not a lot. What percentage would you give? Over 10?

GOLDSMITH: Yes, sir. I would.

SESSIONS: Over 20?

GOLDSMITH: I don’t know.



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