The John M. Olin Fellowships and the advancement of conservatism in legal academia.

• Author: Cady, Erin

"[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics." (1)--F. A. Hayek

INTRODUCTION

In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven M. Teles stated, "It is still too early to tell whether the [John M.] Olin Fellows (2) program has been effective, and in any case it is very difficult to disentangle the impact of the program from the influence of a changed legal culture or greater willingness of law schools to consider hiring conservatives." (3) The fellowship program, which provides conservatives or moderates interested in entering the legal academy with a one to two year, fully-funded position at a law school, (4) is a joint venture of sorts between the Federalist Society and the John M. Olin Foundation, an organization better known in law schools for its advancement of law and economics programs. Since 1997, the John M. Olin Fellowship has sought to encourage and assist conservatives and libertarians in becoming law professors. (5)

In investigating the theory that a changed legal culture at least partially explained the John M. Olin Fellows' placement successes in the academy, Professor Teles looked to Harvard Law School and cited then-Dean Elena Kagan's hiring of three conservatives to the law school faculty--Professors John F. Manning, Jack Goldsmith, and Adrian Vermeule. (6) During her tenure, Dean Kagan was lauded for valuing "intellectual and viewpoint diversity" by alumni and professors alike. (7) After Kagan's nomination for the Supreme Court, Professor Ilya Somin, a noted conservative (and former John M. Olin Fellow himself), wrote an article for Forbes magazine, in which he stated that "Elena Kagan is far from an ideal Supreme Court nominee," but "[h]er openness to non-liberal views of the law and occasional deviations from liberal orthodoxy make her a more attractive candidate than the likely alternatives." (8) Professor Somin mentioned that Kagan hired Jack Goldsmith and John Manning at Harvard even though "[b]oth had taken controversial positions on major legal issues that attracted opposition to their appointments from some left-wing students and faculty." (9)

While Professor Teles believed that the hiring of three openly conservative professors at Harvard might signal a shift in law school culture, it in fact appears to be the exception that proves the rule. (10) First, the fact that the hiring of three conservatives to a law school faculty is at all newsworthy is an indicator of how liberals have come to dominate legal academia. Second, it is notable that those three conservatives were the only openly conservative professors hired at Harvard Law School during Dean Kagan's tenure--during which a total of thirty-two tenured or tenure-track professors were hired. In other words, conservatives failed to make up even ten percent of Dean Kagan's new hires. (11) As Eugene Meyer, the President of the Federalist Society, observed, Dean Kagan both deserved and did not deserve credit for increasing ideological diversity on Harvard's faculty. Meyer posed the following hypothetical to illustrate his point: Say you have a school with 100 members on the faculty, one of whom is conservative. If you hire two more conservatives, do you say that the number of conservatives has tripled, or do you say that only three percent of the faculty is conservative? (12) It is also notable that in the ten years since Dean Kagan hired Manning, Goldsmith, and Vermeule, not a single conservative has been hired at Harvard. (13) Finally, none of these hires were made at the entry-level. Manning, Goldsmith, and Vermeule were known quantities. "[Dean] Kagan went after the known [conservative] rock stars and hired them. That just shows that it's still hard to get hired right off the bat." (14) In other words, the last seven years have shown that the legal culture has not changed, and law schools do not appear to be more willing to hire conservatives than they were before Elena Kagan became the Dean of Harvard Law School.

Incorporating data on five more years of John M. Olin Fellows than Professor Teles's study (the John M. Olin Fellows from 1997-2011 2011), this Note seeks to reconsider the question of whether the John M. Olin Fellowship program has been successful. I evaluate "success" according to the terms used by the John M. Olin Foundation and the Federalist Society's stated goals for the program: to alter the ideological balance of law schools by increasing the dissemination and understanding of conservative ideas. (15)

This Note proceeds in five main sections. The first Part is a review of the current literature on ideological bias in legal academia. Second, I provide an in-depth description of the John M. Olin Fellowships and an account of how they were developed. Next, I provide historical narratives of the John M. Olin Foundation's ideological development, and a brief history of the foundation's relationship with the Federalist Society. Finally, I measure the success of the John M. Olin Foundation in three main parts.

In that final section, I argue that the John M. Olin Fellowship has demonstrated considerable success in placing Fellows in the academy, though that success is limited somewhat by the fact that the fellowship chooses very accomplished candidates who are likely to achieve a placement without the fellowship (though perhaps not quite as prestigious a placement). Still, the John M. Olin Fellows themselves consider the fellowship to have been very helpful, if not instrumental, in obtaining their placements.

The statistics on the placement of John M. Olin Fellows from 1997-2011 initially led me to believe that the fellowship was significantly impacted by the downturn in the legal academic market beginning around 2008. However, upon closer analysis it appears the program's placement success has been somewhat affected by the economic downturn, but the drop off in placement success appears to be primarily due to candidates losing interest in academia or leaving the profession entirely.

In terms of whether the Fellows themselves have used their positions to advance conservatism in academia, my argument proceeds in three parts. First, the fellowship has been successful in establishing "beachheads," or concentrations of Fellows at certain institutions. The Fellows have largely been kept out of the most prestigious institutions, however. Second, the fellowship has also been overwhelmingly successful in placing conservatives who have a law and economics bent, but has had mediocre success in public law placements, which was a major goal of the program.

Third, in terms of disseminating conservative ideas in the classroom, the Fellows have access to students in both first-year courses (as almost all Fellows teach at least one first-year subject), and a decent number of Fellows also teach public law classes, where I hypothesize more conversations would arise that would indicate a professor's ideology. Despite the fellows' access, however, on the whole they have not used their time in the classroom to advance conservative ideology, unless one accepts the proposition that keeping an ideological balance in the classroom is in itself an expression of conservatism. It also appears that some professors, particularly tenure-track professors, try to hide their conservatism for fear that it will impact their ability to earn tenure in the future.

Consequently, the John M. Olin Fellows seem to have run into the biases against conservatism, particularly against public law conservatism, that the fellowship was designed to combat. Unfortunately, institutional bias likely will change only through the passage of time and by slowly increasing the numbers of conservatives on law school faculties.

1. THE LACK OF CONSERVATISM IN LEGAL ACADEMIA

   As law professors choose their future colleagues in the tenure system, they can self-replicate through new hires, creating very narrow paths into the profession. (16) Professors Borthwick and Schau's review of the legal profession found that one-third of professors received their law degree from Harvard, Yale, Columbia, Michigan, or Chicago, and sixty percent had received their law degree from one of the top twenty law schools. (17) Clerkships are also highly regarded by faculty hiring committees; a study by Professor Redding found that among law professors hired from 1996-2000, 57 percent of professors had clerked for a judge. (18) The networks that a competitive candidate must pass through in order to be hired, then, are quite small.

   Although there is very little empirical scholarship on the ideological makeup of law school faculties, the scholarship that exists suggests faculties are overwhelmingly liberal and resistant--if not outwardly hostile--to the addition of conservatives to their ranks. (19) Indeed, "[liberals, in large part, still remain in control of the institutions and processes of legal education." (20) Professor Merritt found that only ten percent of faculty hired between 1986 and 1991 self-identified as "conservative," while more than seventy-five percent self-identified as "liberal." (21) Further, Professor Lindgren found that the groups that are most underrepresented on law school faculties are Republicans and Protestants, despite the fact that these groups make up a significant portion of the population of the United States. (22) In a study of election-cycle contributions by tenured and tenure-track professors at the top twenty-one law schools, Professor McGinnis found that only fifteen percent of professors contributed wholly or predominantly to Republican candidates, while eighty-one percent of professors contributed wholly or predominantly to Democrats. (23)

   The overwhelmingly liberal trend in academia is not unique to legal faculties. In the social psychology field, Yoel Inbar and Joris Lammers published a study finding that more than ninety percent of...