The Agenda

A Pet Peeve Regarding Charles Fried

In a column recounting an interview with Elizabeth Warren, Brian McGrory writes the following:

Officials from both schools, including Charles Fried, a Harvard professor with deep Republican roots, have publicly said that Warren’s ancestry, and the potential lure of listing her as a minority professor, played no role in her hiring. Warren declined again on Thursday to call on the schools to release hiring records that might provide more information.

It is entirely fair to say that Fried has “deep Republican roots,” yet it creates a misleading impression. Fried, who has been sharply critical of the GOP for some years now, is well known for having publicly endorsed Barack Obama in 2008, despite having served early on as an advisor to John McCain’s presidential campaign. This isn’t to suggest that Fried is not being entirely truthful. Yet McGrory makes note of Fried’s “deep Republican roots” to lend him credibility in making a claim that is relevant to an ongoing political controversy, and the fact that Fried has distanced himself from his “deep Republican roots” seems like salient information.

Moreover, it’s not clear that Fried is in a position to say that Warren’s minority status “played no role in her hiring,” as hiring decisions are not made unilaterally. Rather, they are made by a number of people who reach “incompletely theorized agreements” on candidates. That is, it is entirely possible that other members of the hiring committee did believe that the fact that Elizabeth Warren had identified as an American Indian was a relevant qualification, along with her extremely compelling personal story (rising from a modest background, her experiences as a divorced single mother, etc.).* Law professors are valued for their scholarship, but they are also valued, to at least some extent, as mentors and as potential national voices on issues of public concern. The relative weight placed on these different qualities varies over time, and the era in which Warren was hired by HLS was unusually political contentious due to concerns about the representativeness of its faculty. 

*Note: A well-informed friend writes to suggest that I haven’t gotten this right, and so I’ll revisit this post shortly.

In a related vein, many have observed that Michael Boudin was appointed by President George H.W. Bush. That is true. Indeed, he was appointed twice. It is also true, however, that his judicial approach is often identified with that of two judges who also served on the First Circuit, Justice Stephen Breyer and former Justice David Souter. 

P.S. Now for the wise words of my well-informed friend, edited slightly for your benefit:

If anyone considered Warren’s minority status relevant, the entire hiring committee would have known. There is often special “target of opportunity” resources or full-time equivalent slots available for hiring minorities, and so when a promising minority candidate is identified (usually in the course of a regular search), there is a strong incentive for the committee to not just quietly weigh race in their individual votes but to articulate the issue so as to ask the dean for these affirmative action resources. This logic holds even if the minority candidate is the committee’s favorite entirely on the research record, as is entirely plausible in Warren’s case, since at best it lets the department make two hires (one with the allotted full-time equivalent slot and another with the slot reserved for a minority faculty member) and at worst provides some resources to sweeten the recruitment package, which is often an issue since excellent minority faculty are in very high demand and can be the beneficiaries of bidding wars.

In 2009, Anne Gallagher and Cathy A. Trower gave a broad overview of how faculty minority recruitment often works in research universities.

So my correspondent offers three theories:

1. Fried is correct and race played no role whatsoever and the matter of her Indian-ness was only made manifest when she showed up for work and filled out her HR forms

2. The AA policies of Harvard Law as they existed in 1991/1992 or 1994/1995 are different than the model I am familiar with, and so it could work out such that Fried was not made aware of what his colleagues were thinking

3. It worked just as I am suggesting and Fried knows it but is telling a half truth. That is, they may have decided to hire Warren while they were still under the impression she was leading bankruptcy scholar who was 32/32 white and only after reaching this decision did they come across the happy 0.5^5 ancestral windfall, which played a role in the hiring package negotiations, but not necessarily the binary decision to hire or not.

I think the most plausible scenarios are #1 or #3, less so for #2 or any other scenario in which race played a role but a member of the hiring committee didn’t know about it.

Moreover, he doubts that Warren’s story would have any impact on the hiring committee, partly because there is no institutional incentive to reward humble backgrounds for people who aren’t drawn from underrepresented minorities.

Thanks very much to my correspondent for enriching my perspective and correcting my misapprehension. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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