Here is Jonathan H. Adler at The James G. Martin Center for Academic Renewal:
Judge Gorsuch is an avowed proponent of “originalism,” the idea that the original public meaning of the Constitution’s text should control the outcome in constitutional cases.If unintentional irony were raindrops, this piece would be a dead grass fire hazard waiting for a spark to burn burn burn.
What is notable about the academic debate over originalism is not that such a debate exists, but that so much of the debate is misinformed—misinformed about what originalism does or does not entail and why it might be endorsed.
Some of the straw men offered by otherwise-notable academics were so flimsy, it was as if they had never encountered a real originalist in the flesh, let alone spent time trying to understand the point of view they were critiquing.
Training lawyers requires teaching students how to understand and get inside the arguments of those with differing interests, outlooks, and orientations.
If you are not forced to confront, thrust, and parry with an alternative worldview, chances are you will not understand it, let alone grasp its strengths and weaknesses. Instead, you are more likely to imagine a caricature—a caricature formed as much by your own in-group’s biases as by the relevant characteristics of that philosophy.
It's central point - that without having real people to argue unpopular views, they cannot be easily discredited by skilled rhetoricians - is sound. For years, for example, I have been advocating sending Strawmen Supremecists to various college campuses for just this purpose.
Specific to law schools, it isn't even enough to admit an influx of legal conservatives (which should be a simple enough question on an application, yes?) to provide balance to the student - and subsequently professor - ranks. More importantly, we must prepare lawyers to argue against those arguments they will face in court.
Obviously, law schools should deliberately seek out amoral people with personality disorders or substance abuse problems. Far from being red flags to bar administrators, these students would be indispensable in helping the student body understand the unpredictability and manipulation used by lawyers great and small. Professional Responsibility class would be so much more meaningful when students must actually think through is this something to phone in, or just pretend that I didn't hear that?
Other lawyer archetypes will need to be represented as well, like that unkempt old due who writes last-minute one-line motions and never fully prepares; the clueless mill-style lawyer who has a stack of fifteen files and knows nothing of any of them; and the whining extrovert whose legal reasoning skills seem to begin and end with an impressively convincing version of but your honor....
Finally, no well-rounded, diverse legal education could be complete without witnessing in the flesh, in all their glory, for full thrusting and parrying, the mighty pro se representing his own interests, outlooks, and orientations.
Think of all the arguments our pro se litigants make that are never even considered! in American law schools. Don't we do a disservice to our future lawyers by underpreparing them for a significant chunk of the litigating public.
I remember the first tie I went head to head against a formidable pro se litigant. I had prepared for the motion hearing on its own terms. Outline. Key cases. Unassailable points of law.
Then it happened.
JUDGE: I agree with Mr. LSTC, and I don't believe the defect can be cured. I'm granting the motion to dismiss with prejudice.Such arguments are never presented in law schools. I was never forced to spend time understanding the pro se's point of view, to fully evaluate such an argument's strengths and weaknesses, to grasp the relevant characteristics of his philosophy.
PRO SE: I'll just file it again.
JUDGE: You'll what?
PRO SE: I said, I will just file it again.
JUDGE: Sir, it's dismissed with prejudice.
PRO SE: I will go to a different court then.
JUDGE: My ruling will likely have preclusive effect. I would advise you consult an attorney regarding any further options you have.
PRO SE: I'm advising two attorneys right now. I'm going to file until I get a judge who won't dismiss it.
And so I stood dumbfounded even as the judge called the next case. Had I actually won? Had my socialist dunderhead professors betrayed me with their progressive, pragmatic rationalism?
The solution is obvious: we simply need to look beyond the institutional biases inherent of admitting intelligent people and simply admit anyone who's interested enough to creatively defend themselves in court. Law schools would benefit greatly from the perspective-based diversity of having pro se litigants in law school classrooms, and the pro se litigants would obviously benefit as well from sampling intellectual goodies at the million dollar buffet.
So, yes, we need more diversity from a political perspective. But don't stop there. We need to better represent all people who wander into America's courtrooms and raise remotely cogent arguments, and we simply cannot let our elitism stand in the way of educating our students to thrust and parry their adversaries' cutting rhetoric.