Don’t Fire Ilya Shapiro

POLITICS & POLICY
Ilya Shapiro at the 2016 CPAC conference. (Gage Skidmore)

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.

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