Conservative appeals court Judge Amul Thapar called on donors to withhold support from law schools that don’t hire an ideologically diverse faculty and teach originalist theory.
Thapar, a Trump appointee to the US Court of Appeals for the Sixth Circuit and Supreme Court short lister, criticized what he said is an absence in originalist teaching at top law schools during remarks Wednesday evening at the Heritage Foundation.
Originalism is a legal theory favored by conservative judges that calls for the Constitution to be interpreted as its authors would have intended when it was written. It has been cited in major Supreme Court rulings expanding gun rights and limiting access to abortion.
“Much is amiss” at our nation’s law schools, where professors are “overwhelmingly anti-originalist” and “teach widely accepted originalist methods through a distorted, uncharitable and often inaccurate lens,” Thapar said.
And the “main victim” of that failure are the federal district courts, where judges are most overworked and lack the time to pore over historical texts to craft originalist opinions if attorneys aren’t arguing them, he said.
“Imagine how many cases would have turned out differently if lawyers had been taught in law school how to make originalist arguments in their clients’ favor,” Thapar said. “It’s amazing how many times my colleagues and I say, ‘if they only would have made argument X, their client might have had a chance.’”
Until the legal industry “catches up,” he said the onus must be on the appellate courts, where judges have the “time and resources” to produce opinions rooted in historical research. But they too need clerks and arguing attorneys who are also equipped to take this on, he said.
“Make no mistake: money talks. Only when the taxpayers and donors alike demand it will law schools start to change,” Thapar said. “When law schools do change, the hefty price paid for a law degree might actually be worth it, because lawyers will leave law school equipped to practice in today’s courts.”
Thapar, became the first South Asian Article III judge at the time President George W. Bush appointed him to the US District Court for the Eastern District of Kentucky. He was then Trump’s first judicial nominee in 2017 for the seat on the Sixth Circuit.
Thapar’s remarks come as Republican-appointed judges have increasingly chafed against academic institutions they see as stifling conservative thought.
Judge James Ho of the US Court of Appeals for the Fifth Circuit and Judge Elizabeth Branch of the US Court of Appeals for the Eleventh Circuit have both said they won’t hire clerks from Stanford or Yale’s law schools over the schools’ handling of protests against conservative speakers. And more than a dozen federal judges have also said they wouldn’t hire from Columbia University’s law school over its handling of pro-Palestine protests.
Asked about Branch and Ho’s clerk hiring stance, Thapar said while he appreciates their positions, it’s not an approach he would take.
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