The NYT has an interesting discussion between Patrick Healy, its assistant managing editor for Standards and Trust, and Josh Blackman, a professor at South Texas College of Law Houston. It’s a bit rambling, but here are the key bits:
BLACKMAN: Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a “conservative” law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for “liberal” law professors and “conservative” law professors in the New York Times database, and it was far more likely that you’re identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.
And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier.
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HEALY: I think there’s real truth to your critique and it’s something we need to do a better job on. It’s kind of exactly what you said in terms of why we do it. We’re trying to give readers more factual context about who’s speaking or why their views rise to the level of a story. Sometimes it’s notable that it’s a conservative legal scholar criticizing President Trump’s politics more than it might be surprising that a liberal is doing that.
But I do really think you’re right. It can come off like The Times treats liberals as normal and conservatives as unique and worthy of labeling. In the legal academy, there are a lot of liberals, but that doesn’t justify it. I think we need to be more discerning about it.
At that point in the discussion, I thought Healy was being a bit too accommodating. Blackman isn’t some random law professor who happens to hold conservative views; he’s a fellow at the Manhattan Institute and a regular blogger for the Volokh Conspiracy. He’s the lead editor for the Heritage Guide to the Constitution. He is, therefore, a professional conservative activist.
But the conversation quickly shifts, and here I fully agree with him.
HEALY: I’m curious, though, if there are moments where and when you think such labels are necessary.
BLACKMAN: Sure. You know, I found more effective than the label is to be more precise of what the professor’s interest is. So for example, I actually went back and I just searched my name in the New York Times database, just for luck, and there are a couple dozen entries. And some of your reporters have said, well, Professor Blackman has filed briefs in support of the Trump administration, or has filed a brief in opposition to the Obama administration on health care, or, you know, has filed a brief in support of the Texas attorney general — whatever it happens to be. That’s actually a data point that’s useful because it shows a person has sort of a dog in the fight. I’ve also seen, you know, Professor Blackman wrote a book critical of President Obama’s health care policy. OK, well, that’s not just a label; that is sort of describing what I’ve done and why my views might be germane to sort of the current events at hand.
But I think just a naked label, conservative or even liberal, without anything more, it doesn’t really tell you much. So it presumes that, well, because he’s conservative, you know, you should discount his views supporting Trump, or conversely, because the person’s liberal, you should perhaps discount their views supporting President Obama or President Biden, whoever it happens to be. I would — if you’re trying to build up trust and standards, I would focus on the potential reason for a conflict or bias, and not just how the person identifies politically.
HEALY: Yeah, I think you’re really right about those clauses you mentioned that actually spell out interesting context that goes into your work, your scholarship.
You know as journalists, we do sometimes deal a lot in shorthand. We’re looking for one word instead of 10. And I think that is a place where — we talk about this internally with our Standards team — it gets us in trouble. People wonder, well wait, why are you choosing that word instead of this other adjective, or do you apply it the same to Democrats as you do to President Trump?
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BLACKMAN: In the academy — these numbers are public — Republican versus Democratic affiliations are very off kilter. In some liberal arts disciplines it’s almost 90-10, or a bit less so. Law is not quite as bad. There’s a decent number of conservatives, but we’re still a minority. And look, I’m fully cognizant that the reason why you’re calling me is because of an attempt to have balance. And I think it’s actually good, right? I think it would be far worse if The Times just quoted some liberal professors and left the other side unstated.
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But when you get both sides, you should treat both sides with the appropriate sort of lens so that readers know where they’re coming from.
And I’ve — there have been articles where it says, “Conservative Prof. Josh Blackman and Professor So-and-So.” The other one doesn’t get any label. And then so the reader says, well, the other person is just neutral, you know, just straight arrow. And this guy Blackman is coming here with an agenda and that’s sort of just — it doesn’t convey the right framing for your readers. And I think — shorthand or whatever it is — whatever one gets the other should get.
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What I would sort of ask your journalists to do — and some do it — is they might say, you know, “What’s your interest in this case? What’s your interests in this issue? Have you written something on this topic?” And that will usually lend to a natural few words — might not be one, might be four or five, maybe six words, I don’t know — but something that at least provides the framing.
Labeling professors by their political leanings simply isn’t that useful, especially since most of them are indeed rather more liberal than the average citizen. It’s far more useful to know what stake they have in the topic under discussion. Have they previously served in a politically appointed position? Have they filed briefs on one side of the issue? Do they moonlight with an activist organization?
A related issue the conversation only touches on tangentially is the pedigree gap.
BLACKMAN: Your reporters seem to have good Rolodexes — those doesn’t exist anymore — but they need to have sort of a stable of legal scholars on sort of both sides of the issue. And they have to know that when something’s breaking, OK, here’s who you call on one side and here’s who you call on the other side. And there’s some of your reporters who know me and they talk to me from time to time, and others don’t. I mean, I could give you another list of stories where they only give one side of the story. And those are the ones where they call the professor at Harvard or Yale, and just by virtue of doing that, you’re calling only liberals, because Harvard has like two conservatives in the faculty. It’s just not going to happen. I think Yale has maybe half a conservative in the facility, depending how you count. So they have to sort of branch out and, you know, there are podcasts, there’s social media, they have to sort of track and follow the arguments being put forward in this arena.
Now, obviously, he’s exaggerating a bit for effect. There are certainly professors at Harvard and Yale Law whose politics would reasonably be described as “conservative.” But, yes, in the grand scheme of things, it’s much harder to quote conservative scholars, let alone those with equal standing.
If I didn’t know Blackman’s work from Volokh Conspiracy, I would actually find it weird to find arguments from lawprofs at Harvard and Yale being counterbalanced by one from some guy at South Texas College of Law Houston, of which I would never have heard were Blackman not ensconced there. Of the 194 U.S. law schools recognized by U.S. News, it ranks 128 (tie). It all but signals the latter view as fringe.
Which creates its own problem: is the view fringe because it’s conservative? Or because the legal academy is insular, welcoming only certain views?
Blackman is a 2012 graduate of the legal alma mater of our late co-blogger, Doug Mataconis: George Mason’s Antonin Scalia Law School.* Ranked 32nd in the U.S. News roundup, its faculty leans notably to the right, albeit more libertarian than traditionally conservative. There are other prestigious law schools, notably Chicago, UVa, and Duke, that have reputations as conservative. But they’re decided outliers in that regard.
In the sciences, it would be weird to balance consensus views with dissenters. “Conservative climatologist Schmedly Dufendorf of Bob Jones University notes that the earth is only 3000 years old . . . ” is a disservice to the readership, not fairness. In the legal field, though, decidedly minority views of Constitutional interpretation, such as the Unitary Executive Theory, have strong advocates in the political sphere and, it would seem, on the United States Supreme Court. So, the fringe view may become the one that carries the day.
As to the argument at hand, though, I fully concur with Blackman: the press should situate the experts they quote in a way that’s more informative to the reader than “conservative” or “liberal.”
*It didn’t rename itself until 2016, after both graduated. Amusingly, it was briefly the Antonin Scalia School of Law, until social media lampooned the acronym.
