NATELSON: Would Elizabeth Warren Be At Harvard If She’d Been Honest About Being White?
Elizabeth Warren’s substantially false claims of American Indian heritage offer insights into her character. You can best understand this in the context of the corrupt world of law school hiring. I know that world well; I worked in it for 25 years.
When I first expressed interest in becoming a law professor, insiders told me there were two reasons I would have a hard time getting a job. First, I had actually practiced law for over a decade. Even though the basic purpose of law school is to train lawyers, most hire faculty with little or no practice experience. (The phrase “polluted by practice” is sometimes used to designate a candidate with “too much” experience.) Second, I was a white male, and law schools discriminate against white males.
These warnings turned out to be true. Only after great effort did I land two successive jobs at lower level law schools. And I soon learned that, despite extensive published scholarship and a teaching award, my gender and ethnicity rendered it almost impossible to move to more prestigious institutions. Some were quite frank about “not being in a white-male-hiring mode.”
Academic friends suggested I alter my resume to appear more ethnically acceptable. Unlike Elizabeth Warren, I have significant Native American, as well as Hispanic, heritage. However, I rejected those recommendations on moral grounds.
As the case of Elizabeth Warren illustrates, not everyone resists the temptation. Law professorships are very desirable jobs. The pay is far higher than for most academic positions. Most law professors spend six or fewer classroom hours per week, leaving a huge amount of unstructured time.
They are supposed to use that time preparing for class, grading papers, performing administrative work, and pushing back the frontiers of human knowledge. Many spend it in leisure, consulting, playing politics, or writing political tracts disguised as “scholarship.” Some run for public office while collecting full salary.
Such attractions ensure that there are many job applicants. If law schools followed private sector rules, they would select the applicants best equipped to give students what students pay for. That is, the schools would seek proven practitioners who demonstrate teaching ability and scholarship potential — irrespective of gender or ethnicity.
Instead, most law schools fill some positions through cronyism and the rest through criteria largely unrelated to their supposed mission of training good lawyers.
Elizabeth Warren’s career exemplifies the lack of interest in hiring teachers who have practiced what they teach. Despite blather about how Warren prepared wills and real estate documents from home, she never practiced law in any real sense. Her own law school (Rutgers) employed her as a part-time lecturer almost immediately after graduation, and the University of Houston hired her full time the following year.
On the other hand, Warren’s case is unusual because her employers waived not only practice experience but also prevailing academic standards. Most law faculties are stuffy about employing only graduates of the most selective institutions, but four successive schools waived that for Warren.
There’s more. When top law schools hire faculty away from “lesser” schools, they generally take only the most prolific scholars. According to the leading legal database, however, when Harvard employed Warren she had published ten full-length articles over the prior 18 years. This figure is distinctly short of the common expectation of an article per year.
So it is clear that Warren’s ascent to the heights of legal academia was not based on merit, and that two more important factors were gender and purported ethnicity.
In 1986 Warren listed herself as Native American in her Texas lawyer registration. That year, and each year until she won her slot at Harvard, she also listed herself in the Association of American Law Schools (AALS) faculty directory as “Native American.” Professors are asked to edit their directory entries annually, so she submitted the same false information ten years in a row.
Warren claims she identified herself as Indian because she wanted to find like-minded people. But there is no evidence she had much interest in Indian activities. What is more probable is that she shared the common knowledge among law school faculty that schools use the AALS directory to troll for potential faculty from “disadvantaged groups” — a code phrase for key demographics in the National Democratic Party coalition: African Americans, Hispanics, LGBTQ activists, radical feminists, and, of course, Native Americans.
Those unhappy with President Trump’s personal character need to ask themselves if they would be getting anything better with “Fauxcahontas.”
Robert G. Natelson is a long-time constitutional scholar who has written extensively on federalism and on the Constitution’s meaning. He is senior fellow in Constitutional Jurisprudence at the nonprofit Independence Institute in Denver.