Harvard Human Rights Journal Editor “a Little Concerned” About a Prospective Author’s Having Clerked for a Conservative Supreme Court Justice

David Lat (Above the Law) reports on an interesting e-mail exchange among the editors of the Harvard Human Rights Journal (which, like the great majority of law reviews, is edited by law students); I quote a long excerpt below.

Here’s my take: It’s almost inevitable that an editor’s judgment of the quality of a law review article — especially an article that makes arguments about what the law should be, rather than just describing what it is — will turn in part on the editor’s ideology. Even if the editor tries very hard to just evaluate the quality of the reasoning, and set his own views aside, it’s human nature to evaluate reasoning more favorably if you agree with its bottom-line results.

Moreover, some journals see themselves — and are seen by the world — as trying to propagate a particular set of views. That’s most clear outside the academy, with magazines such as The Nation or The National Review. But it’s also true for some law journals, such as Unbound: Harvard Journal of the Legal Left and The Texas Review of Law & Politics, which carries on its site the slogan “The Unfettered Pursuit of Conservative Legal Scholarship.” I think it’s generally better for most law reviews to not limit themselves this way. But there’s certainly room among the many hundreds of law reviews for a few that have an overtly ideological approach, if they are indeed being overt about it.

What troubles me about the e-mail is that its focus is not on the ideology of the article, but the ideology of the author. That, I think, is much more troublesome in an academic publication, because it contradicts what should be a basic academic principle — evaluate the qualities of the argument (even if your sense of the qualities is colored by your politics), not the politics of the arguer. (There are some exceptions, for instance if you’re trying to put on a debate about the policies of Administration X and you want people who served both in Administration X and in the ideologically opposite Administration Y, but this doesn’t seem to be what happened here.)

That’s the way reasoned academic debate is supposed to go forward, it seems to me. And editors’ concerns about which Justice or President someone worked for strikes me as quite antithetical to that sort of reasoned debate — even if it’s not the “one factor alone” that drives the selection decision.

In any case, here’s the excerpt:

Near the end of a lengthy email containing substantive comments, both positive and negative, about a submitted article, an HHRJ editor appended this coda:

In addition, I am a little concerned based upon [Author D]’s CV. He is incredibly conservative, clerked for [Conservative Justice A], worked in the White House under Bush, questioned [Liberal Justice B] during her confirmation hearings in Congress, and has written critically on [Liberal Justice C] in the wall street journal. Maybe that background isn’t important to all of you and I understand the need to have HHRJ be open-minded buuuuuuut, yeah, doesn’t make me want to take this article.

… Another editor responded to that message as follows:

ok i trust [Editor Y]’s judgment — those all sound like major concerns and are enough to reject the article. i’m fine with rejection based on that — we really need to act quickly on all this. other thoughts?

The journal then rejected the article.

We reached out to the HHRJ for comment. The journal released this statement:

The Harvard Human Rights Journal is committed, first and foremost, to publishing the highest quality scholarship on human rights topics. As both the forthcoming issue and past issues reflect, the Journal strives to be a forum for a range of perspectives within this discipline, and therefore each issue strives to maintain a mix of authors at different stages of their careers and from both within and outside of the academy.

Our submissions team sacrificed many, many hours of their free time during the semester and over the summer to provide the thorough analysis and reviews that you noted. Each article submitted is reviewed by two students who write substantive memos analyzing the arguments, and any piece chosen for publication has been reviewed by at least eight people and extensively discussed. This process generates a lot of debate, wide-ranging critiques and opinions, and any individual excerpt cannot fairly reflect the full context of the discussion. Without commenting on the discussion of any particular article, it would be grossly inaccurate to characterize the publication decision for any article as driven by any one factor alone. In particular, we want to stress very strongly that the editors’ agreement or disagreement with an author does not constitute a bar to publication.

Benjamin Fidler and Nicole Summers, Editors-in-Chief

This is a very good statement. In defense of the HHRJ, the comments about the incredibly conservative” author appeared at the tail end of a lengthy email focused on substantive concerns with the piece. And the response email — referring to “major concerns,” plural — supports the Journal’s position that publication decisions are based on many factors, not by any single consideration.

One could also argue that of course the “Harvard Human Rights Journal” is going to be liberal, just as the Harvard Journal of Law & Public Policy is going to be conservative or libertarian. But I like to think that “Human Rights” are not just liberal concerns.

Even though various defenses of the HHRJ email can be made … it’s not a great thing. It’s not great to see “concern[s]” expressed over an author being “incredibly conservative.” It’s not great to see a law review editor express disapproval of a law professor’s government service and participation in public debate, based simply on the side of the aisle the professor worked on.