Prof. Philip Hamburger (Columbia) has an op-ed at the Wall Street Journal arguing, among other things,
What should be done about law-school deans and others in legal institutions who censor, cancel, blacklist, refuse to hire, fire, "investigate" and otherwise threaten others for their opinions? A partial answer lies in reminding them that their misconduct may disqualify them from ever sitting on the bench….
If a dean, committee member, law-review editor, bar-association leader, or other person in authority cancels, blacklists, excludes, threatens or otherwise disadvantages scholars, students, lawyers or their work on the basis of their opinions, can he be trusted as a judge to listen with an open mind to conflicting legal positions? If someone can't tolerate both sides, how can he be trusted to do justice impartially? …
The position of a judge is unlike any other job. Judges enjoy vast authority over their fellow Americans, and the primary defense against abuse of this authority is their internal commitment to impartiality—their dedication to hearing both sides with an open mind and deciding without prejudice. This is a constitutional requirement of judicial office and due process.
So it's not too much to consider intolerance or cowardice disqualifying. Those who have shown themselves to be intolerant of difference or too fearful to stand up for what is right have no business sitting on the bench.
I appreciate Prof. Hamburger's concern about the disease, but I'm not on board with the cure.
