All the Right's Moves
With the fall elections, Republicans now control the White House, the Senate and the House of Representatives. Conservative thinkers are influencing policy and law across the nation. But how is the next generation of conservative leaders affecting--and being affected by--an HLS campus known as a bastion of American liberalism?
The Harvard Law School Republicans' election-night party is under way. A crowd gathers by the televisions in Harkness Commons, chatting over chips and beer, snack mix and sodas. Some students talk politics while others chat about the goings-on in their lives; the televisions are tuned to Fox News, of course. Adorning the walls are Mitt Romney campaign posters, signs tracking the leads in close races and a map of the states drawn carefully with black marker. The map is still mostly blank, but soon enough, most of it will be colored red. By the end of the night, the Republican Party will control the House, the Senate and the presidency.
By a slim but growing margin, the GOP is now the party of majority in the United States. But at Harvard Law School, the political landscape looks much different. A recent article in The Economist called HLS "the command centre of American liberalism," and the assertion may not be too far off the mark. The school's faculty is, by some accounts, overwhelmingly liberal--too liberal even for the mainstream of the Democratic Party, some conservatives say. Rarely will a student hear a professor praise the decisions of Supreme Court Justices Scalia '60, Rehnquist or even O'Connor; right-leaning law and economics scholars like the 7th Circuit's Richard Posner '62 are routinely criticized. It is not unusual in some classes to hear a left-wing student's comments applauded, a conservative's booed. One student compared being a conservative in an HLS class to being a socialist at a military academy.
Yet conservative students are not as much in the minority as the classroom experience indicates. In the past two years, new groups have formed, and more established ones have seen a surge in membership. Those who remember earlier periods of radical student activism at the law school might be surprised to learn that one of the largest and most active groups on campus today is the Federalist Society, a nationally affiliated conservative organization founded in 1982 by law students at Harvard, Yale, Stanford and the University of Chicago. Today, the Federalist Society has about 5,000 student members with chapters at almost 150 law schools.
In today's Republican-dominated Washington, affiliation with the once-obscure Federalists is now a ticket to power. A list of Federalist luminaries reads like a who's who in the Bush administration, including Attorney General John Ashcroft, Solicitor General Ted Olson and Energy Secretary E. Spencer Abraham ' 79 (one of the organization's founders). And as the number of Bush appointments to the federal bench increases, so too do the Federalists within its ranks.
At HLS, the Federalist Society has altered the political landscape, transforming conservatives from an unheard and disparate minority into a tightly organized force. Although primarily composed of conservatives and libertarians, the society stresses a commitment to open discourse and refuses to take stands on political issues or receive money from any political party or party affiliate. Partly because of that stance, the society has become an umbrella organization for a range of conservative students and groups whose beliefs vary among their members almost as widely as they differ from their liberal counterparts. The group includes students who are pro-life and pro-choice; Christian, Jewish and atheist; pro-death penalty and against.
"You have a wide spectrum of viewpoints represented in the Federalist Society," said current HLS Federalist Society president Brian Hooper '03. "The libertarians and conservatives on this campus have made a sort of common cause against this liberal orthodoxy." Hooper, who considers himself "a constitutional conservative . . . somewhat of a libertarian," is proud to note that in addition to including a variety of perspectives in its own ranks, the society's public events strive to present both liberal and conservative viewpoints. To that end, the Federalists primarily sponsor public debates rather than single speakers. Recent debates have included one between Professor Alan Dershowitz and Catholic University of America School of Law Dean Douglas Kmiec on the 9th Circuit's Pledge of Allegiance decision, and another between University of Chicago Law School Professor Richard Epstein and Professor Christine Jolls '93 on employment law.
In fact, the conservative makeup of HLS looks more like that of the nation at large than one might expect. There are students who represent the anti-abortion, family-values-centered Christian Right as well as more bottom-line-focused libertarians. Some can only be fairly categorized as right-wing extremists; others say they consider themselves "conservative" at HLS only because the environment is so far left. Students' views of judicial activism differ as well, with some advocating the traditionally liberal approach of having judges "interpret" the law, but along conservative lines.
"I find it to be pretty much a microcosm of what I've experienced in Washington," said HLS Republicans president Katie Biber '04, who served as a press assistant for Attorney General John Ashcroft and worked with the Republican National Committee before that.
Among the HLS GOP's activities this year, the group has worked on the political campaigns of Mitt Romney ' 75 and John Sununu Jr. and handled poll-watching duties for Romney. Although Biber acknowledges that excitement in political groups is always higher in election years, she added that she has found more conservatives at HLS than she expected.
Professor Charles Fried, who serves as faculty adviser to the Federalist Society and was solicitor general for President Reagan, says the uptick in conservative interest is hardly surprising. "The whole country has moved in this direction, and our students are more representative of the whole country than is the faculty," he said. "The faculty votes overwhelmingly Democrat, but the country doesn't. It's not surprising that our students should reflect the currents within the country as a whole. . . . The notion that a conservative perspective could continue to be treated as an aberration . . . is really unthinkable, considering that for 20 years this is what has been dominant in the law."
But despite their increasing number, some conservatives at HLS say they don't think their peers--or their professors--give them the treatment they deserve.
"I've had one professor that I feel like really sort of handled things in a kind of intolerant fashion," said Jeremy Fielding '03. "By and large, most of my professors have been very fair and disagreed with me. Some have been incredulous that I advocated a position that I did. But sometimes students have been quite rude, in the form of anonymous e-mails after class. I've had booing and hissing take place when I said certain things. But I do think it's a small minority of the class."
Jonathan Skrmetti '04, who writes a conservative-minded column for The Record and is an officer in the Federalist Society, agreed that liberals at HLS often resort to vilifying their political foes on campus: "In some classes with student participation, it is hard not to feel ostracized. My interest in the discussion drops off pretty abruptly once people start calling me racist. As soon as the argument gets difficult, chances are someone on the Left will call me a fascist or a Nazi. That sort of suppression of dissent has no place at any law school purporting to be a center of legal thought."
Often, students say, conservative "silencing" is a sign of simple resignation--after a few volleys of booing and hissing, many students don't feel like bothering to make their points. "I think it's a de facto silencing, where you want to choose your battles or get tired of sounding like the 'crazy conservative freak,'" said Carrie Campbell '04, vice president of HLS's 10-year-old Society for Law, Life and Religion, a group that opposes abortion rights. "It's the underlying assumptions going on that are not worth making a topic of discussion."
This fall, the student-run Committee on Multi-Cultural Unity decided to study the problem. Despite its liberal-sounding name, the CMCU claims no ideological position: The group encourages students to talk about diversity-related issues without taking political stands itself. When the group surveyed the student body on its attitudes about diversity in the fall, it found that many responses focused more on concerns over the treatment of students based on their politics than on their skin colors.
"Harvard is horribly liberal, and the orthodoxy is enforced with a vengeance," one anonymous respondent wrote. Another opined: "The greatest problem with diversity at HLS is a lack of ideological diversity. All the professors--with a few exceptions--are strongly liberal. The vast majority of students are too. This creates an environment in which the few conservative students are reluctant to speak their views. . . . HLS's first priority should be hiring more conservative professors and admitting more conservative students."
Most students who have those feelings seem to be keeping quiet. At a December forum held by the committee--attended by members and the leadership of most of the major conservative organizations on campus and a smattering of liberals--conservatives said they had no trouble speaking out. Still, Biber said that while she and other conservative leaders feel comfortable in their political skins, a larger problem pervades the classroom. "I think conservative students feel silenced because nobody takes their views seriously," she told the audience.
At least one student gave the impression that things may be changing, perhaps starting with this year's 1L class. "I think the student body is extremely ideologically diverse," said Ryan Hecker '05, who estimated that about 30 of the 80 students in his section were moderate to conservative. But, he added, "While the student body is changing, I don't think the faculty is changing with it."
Some conservatives said they even enjoyed the prospect of sparring with their liberal professors. "I'm a social conservative," Brock Taylor '05 told the forum. "I love Duncan Kennedy's class. I think if anyone is complaining, it should be liberals--that they don't have more conservative professors to sharpen their views." Other students argued that it would be inconsistent for conservative students to favor "affirmative action" for conservative faculty while rejecting it on racial and other grounds.
Nonetheless, as libertarian or conservative-leaning legal thought continues to be a factor in the classroom, some students question the dearth of conservative faculty members.
"I think that my intellectual development has been stunted in some way because of that," said Fielding. "It's good to have a mentor who thinks like you. [Professor Jon] Hanson, for example, is a mentor to many liberal students. We don't really have a professor like that at the law school--a conservative or libertarian luminary that students can coalesce around. . . . It's impossible to convince me that there's only one professor in America--Fried--that's a conservative and is qualified to teach at Harvard. If that's not true, then the next question is, How come they're not hiring them?"
Fried, a self-described "19th-century liberal" who is routinely identified as one of the few "conservative" faculty members (although he rejects the label), said the dominance of liberals doesn't matter: "The faculty is overwhelmingly liberal, but it is also overwhelmingly excellent. People are capable of seeing and expressing both sides of a situation. There are some preachers on the left here . . . but a lot of the faculty aren't preachers at all."
While conservatives worry about being silenced, the rise of the Federalist Society and other groups has prompted liberals to start a rally of their own. So effective have the Federalists been here that liberals founded their own chapter of its counterorganization, the American Constitution Society, last year.
"[The American Constitution Society] was founded based on a sense that the Federalists had in fact managed to capture much of legal discourse on important issues of individual liberties and constitutional values and that it was time for liberals to think about providing a coherent and organized response and to sort of redirect the debate," said Assistant Professor Heather Gerken, who serves as faculty adviser to the ACS.
Gerken argues that conservatives' renewed strength comes more from organization than sheer numbers. "The Federalist Society has been extremely effective in creating a more organized conservative presence, but I doubt it's made this campus more conservative," she said.
Whether their number has changed or not, conservatives are certainly more visible. It comes in a variety of forms, from students speaking out in class to more tangible reminders--like the yellow flyers distributed to students' Hark boxes in November by the Society for Law, Life and Religion, which reminded students that they could request a refund of the portion of their Health Services fee that funds elective abortions. The small but vocal group of social conservatives who operate the SLLR keep themselves busy throughout the year working on litigation projects and amicus curiae briefs, participating in anti-abortion rallies, raising money for pro-life causes and sponsoring speakers such as conservative commentator Alan Keyes.
"Planned Parenthood and NARAL have been very successful in marketing to college-age women," said the SLLR's Campbell. "Most women go to college pro-life and leave college pro-choice. . . . People are more likely to consider you some kind of freak for being pro-life . . . partly because it's been spun as if the 'female' attitude is that you have to be pro-choice."
For members of the newly formed Alliance of Independent Feminists, the "female" attitude doesn't look much like the orthodoxy typically associated with female-focused politics. Despite the name, most AIF women share few views with Catharine MacKinnon or Andrea Dworkin. On the HLS campus, their view of equality sounds even more radical, stressing commitment to home and family as an integral part of a woman's life.
"In AIF, we are feminists because we believe women are equal and different," said AIF president Lea Sevcik '03, who was one of a dozen women who founded the group in the spring of 2001. "Women are intellectually equal to men, but their roles in society are naturally different due to their physical capabilities and psychological inclinations. Women should be able to focus on careers, but they are not traitors if they stay home as mothers, and their contribution to society is just as valuable."
Like many of her counterparts, Sevcik said her views don't put her as far out of the mainstream as some might think. "I don't feel like an outcast," she said. "In fact, I don't think my views are that different from what most women sense deep within. I just think that it's OK to be feminine, it's OK to want to have a family and even to put it ahead of your career, and that women are equal to men even when they do these things."
As soon as Sevcik and her right-leaning peers leave HLS, they may never be significantly in the minority again. As for the law school itself, Fried and others readily assent that it will likely remain the "command centre of American liberalism." This means that for the students on this Cambridge campus who believe in the many varieties of American conservatism, their ideologies are being forged and tested by an institution whose faculty does not reflect their beliefs, and that has an occasionally hostile student body to boot.
"I think it's definitely a problem on campus that conservative students feel silenced here, and a number of them have indicated that they're afraid to speak in class," Gerken said. "The idea is to create a classroom where everybody feels comfortable speaking, and that's hard to do as a teacher. As a law school, we need to think a lot about our pedagogy and how we facilitate classroom discussions."
Conservative students will undoubtedly continue to question what they perceive as the law school's philosophical lopsidedness. But ask conservative students if they are sorry they came here, and the answer is always a resounding "no." Paradoxically, no matter how unreceptive HLS may be to their views, the law school will continue to attract bright, capable conservative students. Some may be hell-bent on changing the status quo; others may find ways to thrive in less-than-welcoming classrooms. But whether conservatives have the faculty on their side or not, they cannot complain that they do not have a voice or a place to go. "The Federalist Society is a place that like-minded students can go and find refuge from the leftist storm that rages around them," Fielding said. Thanks to the Federalist Society and other groups, then, HLS may seem a little bit more like the world the students will find themselves in soon enough.