Indecently Defending Federalist Society Trumpscum Racist Ilya Shapiro: Bari Weiss and the National Review Circle the Seditionist Wagons with Bothsidesism, Rape Apologetics, and WOKE Trumpism
David Shasha
Constitutional Law and Supreme Court Expert Ilya Shapiro Joins the Georgetown Center for the Constitution
The Georgetown Center for the Constitution welcomes Ilya Shapiro as its executive director and senior lecturer. He will join the Center on February 1 after serving as a vice president and director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and publisher of the Cato Supreme Court Review. Shapiro will oversee all aspects of the Center’s activities with an emphasis on its Originalism Outside of Academia initiative.
Georgetown Law Professor Randy Barnett, the Center’s faculty director, commented: “Ilya is a highly influential brief writer, an expert on the history of Supreme Court nominations, and one of the premier public commentators on constitutional law. I could not be more thrilled at the prospect of his joining us. With Ilya’s skill set, he will greatly expand the scope of the Center’s activities both within and beyond Georgetown Law.”
In 2020, Shapiro published the bestselling Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, which was described as, “must-read for anyone interested in the Supreme Court” by Utah Senator Mike Lee and “the essential guide for these times” by Jan Crawford, chief legal correspondent for CBS. Shapiro has testified numerous times before Congress and state legislatures and has filed more than 400 amicus briefs in the Supreme Court.
Shapiro regularly contributes to a variety of academic, popular, and professional publications, including The Wall Street Journal, Washington Post, USA Today, National Review, and Newsweek. He appears frequently on radio and television commenting on Supreme Court decisions and other constitutional matters. In 2015, National Law Journal named him to its 40 under 40 list of “rising stars.”
On his decision to come to Georgetown, Shapiro observed: “I’m excited to begin the next phase of my career at one of the foremost academic institutions in the country. As the Center for the Constitution celebrates its tenth year, I hope to build on its previous success and grow its influence over constitutional law and legal discourse in the academic, judicial, media, and policy worlds.”
William M. Treanor, Dean and Executive Vice President commented: “I am very pleased to welcome Ilya Shapiro to the Georgetown Law community to which the Georgetown Center for the Constitution has added so much. I look forward to his contributions to its important endeavors.”
Shapiro earned his JD from the University of Chicago (where he became a Tony Patiño Fellow), following his MSc from the London School of Economics and AB from Princeton University. He clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. Shapiro also served as a special assistant/adviser to the Multi‐National Force in Iraq on rule‐of‐law issues and practiced at Patton Boggs and Cleary Gottlieb.
Follow the Constitution Center on Twitter at @guconstitution and Shapiro at @ishapiro.
For more information, please contact the Office of Communications at mediare...@law.georgetown.edu.
From Georgetown Law website, January 21, 2022
Ilya Shapiro ’99 on the Politicization of Supreme Court Nominations
By: Arika Harrison ’21
The book: In Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court (Regnery - Gateway Editions) Ilya Shapiro ’99 chronicles the history of Supreme Court nominations and argues that the court has become more partisan as it has increasingly been used as a tool by both major parties in order to expand their power.
Shapiro suggests that political fights over Supreme Court nominees are inevitable so long as the court plays such a large role in the expansion of federal power. Shapiro tackles the fundamentals of the court to propose reforms aimed at limiting the court’s role in expanding federal power and therefore depoliticizing its justices.
The author: Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), and editor of 11 volumes of the Cato Supreme Court Review (2008-18). He has contributed to a variety of academic, popular, and professional publications, and regularly provides commentary for various media outlets. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He holds an MSc from the London School of Economics, and a JD from the University of Chicago Law School.
Opening lines: When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court, John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner-up for the Heisman Trophy and spending a year as the highest-paid player in the NFL—and the two became fast friends.
White was a vigorous fourty-five and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick ninety minutes including introductions and supporting testimony from various bar association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career; “Whizzer” White was surely the last person to play a professional sport while attending Yale Law School. The judiciary committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote.
My, how times have changed.
The battle to confirm Brett Kavanaugh showed that the Supreme Court is now part of the same toxic cloud that envelops all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, with a long public career that had been vetted numerous times. He was firmly part of the legal establishment, specifically its conservative mainstream, and had displayed a political caginess that made some on the right worry that he would be too much like John Roberts rather than Antonin Scalia or Clarence Thomas. As it turned out, of course, 11th-hour sexual assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a smear campaign unlike any seen since Robert Bork. …
Confirmation processes weren’t always like this. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916, a tumultuous year that witnessed the first Jewish nominee and the resignation of a justice to run against a sitting president. It wouldn’t be until 1938 that a nominee testified at his own hearing. In 1962, the part of Byron White’s hearing where the nominee himself testified lasted less than fifteen minutes.
But while the confirmation process may not have always been the spectacle it is today, nominations to the highest court were often contentious political struggles. For the republic’s first century, confirmation battles, including withdrawn and postponed nominations, or those upon which the Senate failed to act—Merrick Garland was by no means unprecedented—were a fairly regular occurrence…
Then of course there’s Merrick Garland, the first nomination the Senate allowed to expire since 1881—but then the last time a Senate controlled by the party opposite to the president confirmed a nominee to a vacancy arising in a presidential election year was 1888. As we now know, Senate Majority Leader Mitch McConnell’s gamble worked: not only did it not hurt vulnerable senators running for reelection, but the vacancy held Republicans together and provided the margin for Donald Trump in key states. Trump rewarded his electoral coalition with the nomination of Neil Gorsuch, who was confirmed only after the Senate decided, on a party-line vote, to exercise the “nuclear option” and remove filibusters.
Opportunities for obstruction have continued—pushed down to blue slips, cloture votes, and other arcane parliamentary procedures—even as control of the Senate remains by far the most important aspect of the whole endeavor. The elimination of the filibuster for Supreme Court nominees was the natural culmination of a tit-for-tat escalation by both parties.
More significantly, by filibustering Gorsuch, Democrats destroyed their leverage over more consequential vacancies. Moderate Republican senators wouldn’t have gone for a “nuclear option” to seat Kavanaugh in place of Anthony Kennedy, but they didn’t face that dilemma. And they won’t face it if President Trump gets the chance to replace Justices Ruth Bader Ginsburg or Stephen Breyer, which would be an even bigger shift.
Given the battles we saw over Gorsuch and Kavanaugh, too many people now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation now largely track identification with parties that are more ideologically sorted than ever…
Pundits always argue that judicial nominations should be among voters’ primary considerations when choosing a president. Well, the Supreme Court’s future truly did hang in the balance in 2016. The election was so consequential in part because people knew that its winner would have the first chance in more than twenty-five years to shift the Court’s ideological balance. Indeed, the Court now stands starkly split 5–4 on many issues: campaign finance, the Second Amendment, religious liberty, and regulatory power, to name a few. If Hillary Clinton had been able to appoint a progressive jurist—even a “moderate” one—these policy areas would be headed in a substantially different direction.
From Princeton Alumni Weekly, September 11, 2020
The CDC’s Eviction Moratorium Is Unconstitutional
By: Josh Blackman and Ilya Shapiro
Note: This blog was originally posted at the Cato Institute's Cato at Liberty blog.
During the pandemic, many states halted residential evictions. Texas did not. The Lone Star State allowed landlords to use the legal eviction process to remove nonpaying tenants—until the federal government intervened. The Trump Administration, and now the Biden Administration, criminalized eviction. Yes, the Center for Disease Control and Prevention (CDC) made it a federal offense for a landlord to use the legal eviction process in state court.
That unprecedented executive action was premised on an inferential house of cards: if people are evicted, they will live in closer quarters, potentially spreading COVID-19. To avoid that speculative problem, the government banned landlords nationwide from using legal processes to remove tenants. The government literally made it a crime to file a petition in state court.
Lauren Terkel, a landlord in East Texas, challenged the CDC’s edict. And a federal judge declared that this action went beyond the scope of Congress’s enumerated powers. Cato agrees. We filed an amicus brief supporting Terkel before the U.S. Court of Appeals for the Fifth Circuit, joined by Professor Randy Barnett and the Reason Foundation, Individual Rights Foundation, and Independence Institute.
This case involves constitutional structures of vital importance to individual liberty: federalism and the separation of powers. The federal government simply lacks the power to regulate the process of eviction in state courts.
Under modern Supreme Court jurisprudence, Congress can rely on the implied power to regulate intrastate economic activity that, in the aggregate, has a substantial effect on interstate commerce. That so‐called substantial effects test, however, does not apply to noneconomic activity. The Court has upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
The legal process of eviction is not economic in nature. An eviction cannot be produced, distributed, or consumed. It cannot be sold, exchanged, or bartered on any marketplace. Indeed, it would be insulting to describe a judicial process as having an “apparent commercial character.” You can buy wheat and weed, but you can’t buy a writ of possession. Congress lacks the power to criminalize this legal process of eviction, which is not an “economic activity.”
Moreover, the Necessary and Proper Clause doesn’t empower Congress to criminalize the legal process. This regulation of intrastate noneconomic activity must be both a necessary and a proper exercise of federal power. As Chief Justice John Roberts wrote in NFIB v. Sebelius (the first Obamacare case), the Constitution “does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated.”
Accordingly, the unprecedented moratorium is not proper because it denies access to the state courts, intrudes on the sovereignty of state judiciaries, and distorts political accountability. This federal order cannot be saved by the Necessary and Proper Clause, what Justice Antonin Scalia called “the last, best hope of those who defend ultra vires congressional action.”
Despite the federal government’s never‐ending quest to aggrandize its own authority at the expense of state autonomy, there still exists a line, as the Supreme Court put it 25 years ago in the seminal federalism case United States v. Lopez, “between what is truly national and what is truly local.” The legal process of eviction in state court is deeply rooted on the “truly local” side of that line.
From The Federalist Society website, June 3, 2021
The Dishonest Cancellation Campaign against Ilya Shapiro
By: Dan McLaughlin
Ilya Shapiro has been writing and speaking on the Supreme Court for the Cato Institute (where he ran the Cato Supreme Court Review), the Federalist Society, various conservative publications, and mainstream outlets such as guest blogging at SCOTUSBlog for years. His recent book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, is an excellent overview of the issue. The son of Russian-Jewish immigrants, he has, over time, developed an essentially universal reputation for scholarly rigor and good humor, even when he lost his recent campaign for the school board in Falls Church, Va. It seems almost protesting too much to observe that neither I nor anybody else who knows Ilya has ever seen or heard him be anything but fair and decent towards people of all races and genders.
He has, however, done two things the Left will not easily forgive. One, consistent with his distaste for the anti-Jewish quotas his parents faced in the Soviet Union, he was an early supporter of the lawsuit against Harvard’s race discrimination against Asian Americans, a suit that has now reached the Supreme Court and has defenders of race discrimination scrambling for any weapon to hand to defend their practices. Two, just a week ago, Georgetown Law announced that it was hiring him to be executive director and senior lecturer at the Georgetown Center for the Constitution. Academic perches of that nature are seen by left-wingers as their exclusive province, and whenever a conservative or even a right-leaning libertarian gets hired into one, they immediately set out to get them fired by any means necessary.
Joe Biden has, quite rightly, come in for criticism for announcing in advance during the 2020 campaign that his first Supreme Court nominee would be a black woman. The problem is not simply that Biden pledged to consider race or gender, or eventually make room for a black woman on the Court, but that he specifically said that for this job, his first criteria — sight unseen of who he would interview — would be to eliminate the great majority of the available candidates based solely on their race and gender. While presidents have had gender or state limitations in the past, this is a step further. Here was Ilya’s response to Biden’s explicit race-and-gender litmus test on Twitter:
https://www.nationalreview.com/wp-content/uploads/2022/01/FKImxaoVcAEB_7B.jpg?resize=680%2C598?w=680
Now, one may or may not agree that Sri Srinivasan would be the best possible candidate, but it is not an unreasonable point of view, and I do not doubt that it is a sincere one. Srinivasan certainly has a sparkling resume of the sort that Supreme Court nominees are regularly made of: he argued 25 Supreme Court cases as principal deputy solicitor general, lectured at Harvard Law School on Supreme Court and appellate advocacy, and has served on the D.C. Circuit for nine years. He is now the chief judge of that court, succeeding Merrick Garland. In 2016, we heard lots from liberals about how that job made Garland an ideal candidate. Nine years ago, Srinivasan was described by Jeffrey Toobin as Barack Obama’s “Supreme Court nominee in waiting,” and as Adam Serwer wrote at the time, “Srinivasan has more bipartisan legal muscle behind him than any other federal court nominee in recent memory. Legal elites of all political stripes consider him one of the best lawyers in the country.” Given that Srinivasan is also a member of an ethnic group and a religion (Hinduism) that have never been represented on the Court, it would seem imprudent for a Democratic president to rule him entirely out of consideration for no reason other than his race and gender. One would think that, in America, that sort of thing would be a fair criticism.
Moreover, we have already before us a daily reminder of the hazards of limiting your pool of applicants in this way. Biden also committed himself to a woman as his running mate. At the height of the George Floyd protests, he came under public pressure from Stacey Abrams, Al Sharpton, and Amy Klobuchar (who withdrew herself from consideration on this basis) to choose a black woman. Had he cast a wider net, he might still have picked a better running mate, but because there was only one black woman among the nation’s senators and governors, Biden chose Kamala Harris, who has been a disaster. At this writing, Donald Trump is at 43 percent approval with the public, Biden is at 41 percent, and Harris is at 37 percent. The fact that Harris is bad at her job has nothing to do with being a black woman; but the insistence on looking only at one race and gender for the job has a lot to do with how Biden ended up with a politically weaker vice president than he might otherwise have chosen.
Now, Ilya’s use of the words “lesser black woman” in this context was not the ideal way of phrasing this critique, but then, Twitter is fast-moving, space-constrained, and has no edit function, so it is hardly unusual to see things phrased there awkwardly (the tweets were written on his iPhone, and he has since deleted them). But this morning, Mark Joseph Stern of Slate decided to try to get Ilya fired from Georgetown by dishonestly portraying this as a “racist” rant and, for good measure, dismissing a writer of obviously superior intellect and credentials to Stern as a “troll” and casting his own eager assault as something he regretted having to do:
I hate to draw attention to this troll because attention is what he craves. But now that @GeorgetownLaw has hired him, I feel an obligation to condemn his overt and nauseating racism, which has been a matter of public record for some time. I am deeply ashamed of my alma mater. pic.twitter.com/OQaHPzZ8gK
— Mark Joseph Stern (@mjs_DC) January 27, 2022
Let's be clear: Shapiro would have accused ANY Black woman nominee of having a "lesser" intellect—even if Biden had not announced his demographic criteria beforehand. That's how he smeared Sotomayor, even though Obama never promised to nominate a Latina. https://t.co/cf7fNYdTRY pic.twitter.com/fA5t87anYJ
— Mark Joseph Stern (@mjs_DC) January 27, 2022
To Shapiro, the nomination of any woman of color is inherently suspect. He simply cannot see how such a candidate might have earned the position; he assumes she coasted, undeservedly, on affirmative action. And he doesn't see how this belief is colored by his own racism.
— Mark Joseph Stern (@mjs_DC) January 27, 2022
No matter how qualified Biden's Supreme Court nominee is, Shapiro will accuse her of being unqualified. Why? Because he cannot accept that a woman of color deserves to sit on SCOTUS. His assessment of nominees is contaminated by his own racism. He has made this painfully clear.
— Mark Joseph Stern (@mjs_DC) January 27, 2022
This is willfully dishonest, and it is done to explicitly target Ilya’s hiring by Georgetown, and Stern knows it. Most graphically dishonest is Stern’s claim that only racism can explain thinking that a non-white judge is better qualified, and that only a racist would object to excluding highly qualified people from a job interview process on the basis of race.
Academia being what it is, Stern got the head of Georgetown Law to issue a denunciatory statement:
Bill Treanor, dean of Georgetown University Law Center, sent a school-wide email condemning future GULC professor Ilya Shapiro's racist tweets this morning. pic.twitter.com/OcD39ls8we
— Mark Joseph Stern (@mjs_DC) January 27, 2022
We should call all of this what it is: an immoral, dishonest, and scurrilous smear campaign. And this sort of thing will only intensify.
From National Review, January 27, 2022
Don’t Fire Ilya Shapiro
By: National Review Editorial
Twitter is not, obviously, a medium naturally given to carefully calibrated expression. Almost everyone who uses it has jumped to a conclusion too quickly, worded something poorly, or deleted tweets after thinking better of them.
So, it wouldn’t be particularly noteworthy that Ilya Shapiro of the Cato Institute fired off a couple of late-night tweets whose wording he regretted, except that he’s been hired for a position at Georgetown Law School and an outrage mob is demanding his preemptive firing.
If Georgetown allows itself to be bullied into going down this route, it will be perpetrating an outlandish injustice, trampling the values of free and open expression that are supposed to animate such institutions, and courting — deservedly — a fierce reaction from alumni.
Upon the news that Justice Stephen Breyer is retiring and President Biden is sticking by his pledge to nominate a black woman as a replacement, Shapiro tweeted that Sri Srinivasan, the Obama-appointed chief judge of the United States Court of Appeals for the District of Columbia Circuit, would be Biden’s best pick. He noted that Srinivasan, who holds the job Merrick Garland held when he was nominated for the Supreme Court, is a very impressive progressive. Then, he said that Biden’s pledge meant that he’ll instead nominate a “lesser black woman.”
That’s a wince-inducing turn of phrase, especially in isolation, and Shapiro deleted the tweet. But it does not make Shapiro a racist and shouldn’t be used to negate all the qualities that led Georgetown to pick Shapiro to head its Center for the Constitution in the first place.
If Shapiro was airing his alleged racism in that tweet, he had a funny way of doing it — he was strongly endorsing an Indian-American jurist who is a Hindu. If Srinivasan ever makes it to the Supreme Court, he will make history a couple of different ways. In addition, Shapiro was enunciating a belief that Srinivasan is the best of all candidates — in other words better than all other candidates whatever their race or sex — and a principled opposition to elevating demographic considerations above the individual merits of possible nominees. If Biden had pledged to pick a white man, surely Shapiro would have rued this promise on exactly the same grounds. Moreover, Shapiro has previously cited a black woman (Janice Rogers Brown) as being someone he would nominate for the Court if he had the chance.
The fact is that there is absolutely nothing in Shapiro’s record to indicate any hint of racism and sexism. He has written about, discussed, and debated the Constitution for decades now, winning the admiration and respect of people across the ideological spectrum for his knowledge, passion, and civility. His sincerely and deeply held libertarianism has led him time and again to defend underdogs challenging state action regarding criminal justice, civil liberties, regulatory barriers to employment, and discrimination.
It’s now a further charge in the indictment against Shapiro that he questioned Sonia Sotomayor’s suitability for the Supreme Court, but so did Laurence Tribe and Jeffrey Rosen. Isn’t it suspicious, the critics ask, that he praised Amy Coney Barrett, a white woman? Well, no, as an originalist, he’d of course endorse her approach to the law, and Barrett impressed people on the right and the left during her rise to the Court.
But Shapiro shouldn’t need defending on any of this. It was obvious what he meant with his tweet, and he rapidly deleted it and apologized for the wording. In a rational world, that would be enough. From a faculty member who was staunchly progressive, it would be enough. The dean of the law school, William Treanor, has already denounced Shapiro in excessively harsh terms, and all indications are he is considering firing him. That would be a cowardly act signaling the school’s intellectual and moral inability to stand up for fairness, open speech, and minimal ideological diversity. If that comes to pass, Georgetown alumni should make their voices heard and close their wallets to the school.
Shapiro, unsurprisingly to anyone who knows him, has behaved honorably in this controversy. It remains to be seen if the same can be said of Georgetown Law.
From National Review, January 29, 2022
On Decency and Double Standards at Georgetown
By: Bari Weiss
I’ve been thinking a lot over the past few days about a tweet by a Georgetown professor.
Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement.
All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes.
That tweet was written in 2018 by Georgetown professor Carol Christine Fair about Republican senators who supported Brett Kavanaugh’s nomination to the Supreme Court.
Fair also writes a blog called Tenacious Hellpussy, which she describes as “a nasty woman posting from the frontlines of fuckery.” There she notes: “Cunty women get shit done.”
I fully agree, though I might call it chutzpah. For evidence, we need look no further than Fair herself.
When asked to apologize or explain her policy recommendation of mass castration and death she said this: “I will not use civil words to describe mass incivility.” She added: “Don't expect me to. It’s an absurd request. I will use words that make you as uncomfortable as I am with this regime.”
Though Twitter temporarily suspended her, Fair’s chutzpah here paid off where it mattered: Georgetown defended Fair’s right to speak. “The views faculty members expressed in their private capacities are their own and not the views of the university. Our policy does not prohibit speech based on the person presenting ideas or the content of those ideas even when those ideas may be difficult, controversial or objectionable.” Fair continues to teach at Georgetown.
Hold Fair’s tweet in your mind as you consider the story, still unfolding, of constitutional law scholar Ilya Shapiro.
Shapiro is a Soviet emigré and highly regarded scholar who, until last week, seemed like a perfect match for the job as executive director at the Georgetown Center of the Constitution. He was scheduled to start February 1. But late at night, on January 26, he took to Twitter to express his disapproval of President Biden’s pledge to appoint only a black woman to fill Justice Breyer’s seat on the Supreme Court. Now, his career is on the line.
Here’s what Shapiro wrote:
Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn't fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?
Because Biden said he's only consider[ing] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.
Many others wrote similar tweets the same day, expressing outrage at the president’s promise to reserve the seat for someone of a specific race and gender. Andrew Sullivan, for example, put the objection this way: “The replacement will be chosen only after the field is radically winnowed by open race and sex discrimination, which have gone from being illegal to being celebrated and practiced by a president of the United States.”
But instead of expressing disappointment that the president had made clear that his priority would be to choose a black woman—not the best candidate, whatever that person’s race or sex—Shapiro’s inartful phrasing indicated that the president’s pledge would hand us a “lesser black woman.”
Led by a Slate journalist, the Twitter mob did what Twitter mobs do and stoked the intended result: In an email to the school the dean called Shapiro’s tweets “appalling” and “at odds with everything we stand for at Georgetown Law.”
Then Shapiro, who had already deleted the tweet, sent an apology addressed to the Dean William Treanor and the entire Georgetown community:
“I sincerely and deeply apologize for some poorly drafted tweets I posted late Wednesday night,” he wrote.
“Issues of race are of course quite sensitive, and debates over affirmative action are always fraught. My intent was to convey my opinion that excluding potential Supreme Court candidates . . . simply because of their race or gender, was wrong and harmful to the long term reputation of the Court. It was not to cast aspersions on the qualifications of a whole group of people, let alone question their worth as human beings. A person’s dignity and worth simply do not, and should not, depend on any immutable characteristic. Those who know me know that I am sincere about these sentiments, and I would be more than happy to meet with any of you who have doubts about the quality of my heart.”
But apologies and contrition are no longer enough, it seems. On Friday, the Black Law Students Association, speaking on behalf of a dozen student groups, wrote to insist that the school rescind Shapiro’s job offer among many other demands. That’s because these days, sincere apologies do not function as expressions of regret but as confessions of guilt.
No doubt, as Professor Shapiro’s job remains in the balance, we’ll hear more demands for further genuflection. He should adamantly refuse. Instead, he should point out the following.
First, the view that President Joe Biden should hire a replacement for Justice Breyer’s seat based on merit and not identity is not some fringe position. It is one shared by 76% of Americans. According to a new ABC/Ipsos poll, more than three-quarters of Americans say they want Biden to consider “all possible nominees.” Only 23% want President Biden to “consider only nominees who are Black women, as he has pledged to do.”
Shapiro has admitted that his tweets were “poorly drafted,” and they were. But it was obvious to anyone reading him in good faith that what he intended to say was that Biden should pick the most qualified person for the job. This is to say nothing of the fact that the judge Shapiro said was “objectively the best pick” would make another kind of history: Sri Srinivasan would be the first Indian-American on the Court.
The second thing Shapiro ought to point out is the case of Professor Fair. Her statement about feeding castrated corpses to pigs inspired a defense of free speech from the school. Shapiro’s tweet—which he deleted and apologized for—was called “appalling.”
The Foundation for Individual Rights in Education (FIRE) has thankfully stepped in to the Shapiro brouhaha to remind the university of its stated principles, urging Georgetown Law Dean William Treanor, “to use this controversy as an opportunity to reinforce Georgetown’s laudable commitment to freedom of expression.” But the galling double standard here reveals that, increasingly, mainstream conservative views at American universities are seen as a violation of HR rules in and of themselves. And I mean this quite literally: More than a third of conservative academics and PhD students say they had been threatened with disciplinary action for their beliefs.
I have never met Ilya Shapiro, though we have various mutual friends who attest to his character and to his sincere regret on this score. And I have no doubt that if Georgetown decides to break their contract and fire him before he’s even begun he will somehow land on his feet.
But the tragic reality here—what the cases Fair and Shapiro show—is that there is no reward for being decent or admitting regret or apologizing. In our increasingly graceless culture, decency can be a one-way ticket to exile.
I called Shapiro to see if he sees things that way. I asked him if he regrets apologizing. He told me no. “The right thing to do is just the right thing to do.”
I also reached out to Fair. She said she didn’t know about anything about the case, but added: “In general, I believe that the only response to speech one doesn’t like is more speech and I decry cancel culture on any side.” She suggested I should reach out to FIRE, an “organization, whose efforts I support.”
Let’s see if Georgetown has the courage to do the right thing: Accept Ilya Shapiro’s apology and move on.
From Common Sense with Bari Weiss, January 30, 2022