The lifecycle of one of these law school racism scandals follows a natural progression. But unlike the stages of grief, the course of these skirmishes progress through a pre-determined course of victim blaming: (1) It’s your fault for not understanding it; (2) It’s your fault for not accepting that it’s your fault for not understanding it; and finally, (3) It’s your fault because you’re too weak to take it.
Amy Wax has tread this path so long she can run through the cycle all by herself in a single interview. Her recent interview with Gal Saad ran the course from disparate racial impacts being a matter of “the realities” (i.e., you all aren’t understanding that I’m not trying to be racist) to “I’m a casualty in the culture wars” (i.e., it’s your fault for not understanding me) to saying law students are “cowed, benighted sheeples” (i.e., you’re too weak to take my smoking hot takes).
But Wax is a superstar when it comes to this stuff. In other cases, it takes a village to victim blame.
So it came as exactly zero surprise to find the National Review headline “Snowflakes Should Not Be in Law School” last night. To recap, Georgetown Law hire Ilya Shapiro tweets that the idea of nominating any Black woman to the Supreme Court would amount to nominating “lesser Black women.” He describes the comments as “inartful” implying there exists a more clever drafting of the sentiment Breyer clerk with almost a decade of judicial experience cannot possibly be the most qualified person for a job. Anyway… first checkmark cleared!
Now it’s up to screaming baseball Dan McLaughlin to use his National Review article to take us the rest of the way home. It’s time to blame everyone for just not getting it!
First of all, of course, they are failing basic reading comprehension, which is an important skill in the law. Shapiro simply argued that a racially and gender-discriminatory criterion for selecting a Supreme Court justice — a criterion that excludes some 97 percent of the potential candidates, including the person he personally considered the best-qualified candidate — was likely to produce a less-qualified justice.
But here’s the wrinkle to this… Shapiro suggested that the “best-qualified” person for the job was D.C. Circuit Chief Judge Sri Srinivasan. Had Biden pledged to nominate a Supreme Court justice of South Asian descent it would be just as much a racial consideration and exclude even more potential candidates but would not, by his own metrics, produce a “lesser” candidate. The point is, McLaughlin’s disingenuous back-of-the-envelope figurin’ can’t clear the racial implications of the tweet by claiming it’s all just a function of narrowing the candidate pool. If anything, McLaughlin’s rehash of the original tweet rests even more on the idea that “Black women” are uniquely unqualified.
Alas, second obstacle cleared.
Now for the final pillar, McLaughlin cites some National Review reporting about law students asking the school to designate a place to cry.
But it is not just that these law students are arguing for an unreasonable meaning of Shapiro’s words; they are claiming to be so personally traumatized by those words that they need a special room to go cry in. That is not just dishonest, it is insane.
Assuming this report is even accurate, it’s quite a leap to consider this representative of the protest. But taking an extreme anecdote and plastering it on the rest of the students is key to his whole endeavor so just roll with it.
Real lawyers need a much thicker skin than that when confronting unpleasant words and alien points of view. They need the ability to read and fairly digest the words of people with drastically different perspectives than their own. They also need the capacity to stretch their own minds to persuade other people — judges, juries, the other side in a negotiation — who may come from different perspectives and see things differently. Like it or not, judges from Federalist Society backgrounds and perspectives are going to be in a lot of courtrooms; Trump voters are going to be on a lot of juries.
Maybe experiencing such a personal reaction to this specific issue is a reason not to go into labor and employment litigation or something, but it has exactly nothing to do with someone’s ability to excel at any number of legal practices. The smoothing of the legal profession to just hard-boiled violent crime cases that require some kind of permanent toxic state of detachment is inaccurate. It’s also destructive to the extent it enables the dwindling number of bad actors who take it as a point of pride to act like unprofessional jerks.
Quibbling over ERISA compliance is not comparable with experiencing racial animus — intended or otherwise. Not only is it acceptable to have a different reaction to those two situations, it’s absurd not to. Note that every time this “too soft” argument comes up it’s always in response to some kind of racial or gender hostility. Students aren’t upset at massive amounts of reading or short turnarounds on take-home exams — it’s professors dropping n-bombs or gratuitous sexual violence hypotheticals that generates all this hand-wringing about “how will they ever be able to close a merger?”
Almost as though the students are just fine when it comes to dealing with everything they should have to deal with but have a healthy lack of tolerance for the stuff they shouldn’t have to deal with.
Though McLaughlin has a suggestion for this hole in his argument: maybe the students aren’t, in fact, “snowflakes.” Maybe they’re just cynical actors waging emotional terrorism on the administration! Surely that’s the only possible reason why they’d be more upset over racism than their homework!
And somehow the snowflake discourse managed to get more unhinged from reality.
Perhaps the best way to wrap this up is to offer a lesson about not being Seymour Skinner. When students are complaining about racism at school, the problem isn’t that the children are the complaining, it’s the racism. The students are just fine, get your own priorities in order.
Snowflakes Should Not Be in Law School [National Review]
Earlier: Georgetown Law’s Newest Hire Thinks Biden Will Nominate ‘Lesser Black Women’ To The Supreme Court
Ilya Shapiro Joins The Ranks Of Lesser ‘Put On Administrative Leave’ Professors
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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