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Monday, April 19, 2010

On Hope vs. Change and Prestige vs. Principle

There was a lot of talk about, and pushback to, Dahlia Lithwick's recent Slate piece asking why liberal or progressive law students are so unhappy.  Her answer, in short, is that their heroes, those who have been willing to "talk and write in bold ways about liberal jurisprudence," have not been taken seriously as prospects for the Supreme Court, and that this is dispiriting and wrong.  Two of the most interesting responses were from Mark Tushnet and Jonathan Adler, although I agree much more with Tushnet than Adler.  Tushnet writes that the reason for this is that there isn't a deep bench of young liberal judges on the federal courts and in reach of the high court.  (I wrote something somewhat similar here for the Constitution in 2020 conference.)  Adler, who later wrote to agree with Tushnet's observation, wrote some (fair) critical remarks that ended in a kind of cri de coeur: "[T]he game hasn’t just begun.  It’s been played for some time — and liberals are now learning what its like to play on the field they created. After years of targeting, attacking and smearing highly qualified conservative nominees, the tables have been turned — and it’s no fun."

I would like to offer a different response to Lithwick.  Although I question the premises of her argument, I would like to speak up for the possibility that even if she's right, disappointing progressive law students isn't a bad thing, and may actually be good for the country.  The same thing, mutatis mutandis, can be said for making conservative law students unhappy.  The problem is that, often enough, both of them want the wrong thing.  Both groups talk about "change" -- who doesn't, these days? -- but what they really live for is hope: namely, hope for advancement, and of the wrong sort.

I have nothing in particular against the "heroes" Lithwick mentions, and I've worked with a couple of them.  But what mostly distinguishes them is that they have worked in elite prestige institutions: elite law schools, a few law firms, and high executive office.  The same is true, by and large, for the corresponding conservative "heroes."  When they aren't working there, they're working for organizations -- the Federalist Society, the ACS -- that partly serve an ideological function and substantially serve a networking function, and that tend to celebrate and attempt to reproduce the same elite legal functionaries.  In this world, you can have a chair at Yale, serve as the Solicitor General, or, if lightning strikes, get appointed to the Supreme Court.  That's just what heroes do.  Those law students, left or right, who idealize these sorts of heroes -- innocently and understandably enough -- are not just thinking about change: they're looking ahead to their own professional futures.  They would like to think that these garlands await them too, if they work hard and are lucky (and diligent about pressing the flesh at the FedSoc or ACS conventions.)

With the possible exception of the Yale deanship, those are honorable positions, and understandable ambitions.  But are they the wrong ambitions?  If we are really interested in change over personal hope, in principle over prestige, in doing good over doing well, then should these students be hoping for something else -- either looking to other heroes or, if they can't find them, carving out their own heroic niches?

I think this tendency to go for prestige over genuine change is true of both sides.  It shouldn't take twenty years of Klarman, Rosenberg, Sunsteinian minimalism, Barry Friedman, etc. to convince progressives that the Supreme Court and other prestige positions aren't where the only action is, or even the most important action.  Given a choice between 100 progressive law students, one of whom may one day become a Supreme Court Justice, or 100 progressive law students, five of whom will run for a local school board, if I actually wanted progressive social change I'd go for the school board group every time.  

Granted, my wife ran for and won a seat on our local school board, which is badly in need of her services, so I may be biased.  But some sectors of the conservative movement have demonstrated quite well in recent years that they understand how important local legislative office is to achieving their goals, and many liberals spend a good deal of time as a result decrying their school boards (Texas, anyone?) and state legislatures.  The Supreme Court decides about 90 cases a year, roughly 75 of which involve ERISA.  School boards deeply affect social change every day, for tens of millions.  And those small positions are springboards for larger ones: first the school board, then the state legislature, and so on.  Even if you never get that far, you're still affecting policy on the ground.  Although I've had this debate before, progressives should not be disappointed if President Obama has decided that it's more worthwhile seeking "change" on a policy front, and throwing his progressive constituency under the bus when it comes to judicial nominations or even the Office of Legal Counsel; one might just matter a hell of a lot more than the other.  And yet the ACS focuses its efforts, and progressive law students fix their ambitions, on the prestige positions.  "Elite" may get you invitations to more lavish conferences; but if you want real change, you're barking up the wrong tree.  (I can't help but add, from here in Alabama, that the number of progressives working for real social change, in places that actually need it, tends to diminish the further you get from access to a Trader Joe's, a good Thai restaurant, and an excellent private school.  If we could convince one percent of the social progressives in Cambridge, Mass., to move to Mississippi, we might see some change worth believing in.)

Similar dynamics are often at work on the conservative side, especially the legal establishment conservative side.  I have said before that if you actually care about being a "Federalist," and not just about getting a swanky job, you ought to actually be a federalist.  Given a choice between 100 conservative law students, one of whom ends up clerking for Antonin Scalia or Judith Rogers Brown, and 100 conservative law students, five of whom clerk for a state supreme court justice, if I were interested in achieving legal conservatism in principle I would take the state supreme court clerks any day.  Given a choice between sending one lawyer to the Justice Department and five to the local school board, I would take the latter.  Sometimes my commenters will respond that this is all well and good, but real change must be achieved by those who serve as the referees at the top.  I understand this argument, but I think it is both mistaken and, perhaps unintentionally, less than candid.  Nino Scalia has been influential, but his own writing suggests that in an ideal conservative world, most of the work of conservatism should be done by local politicians; that people who care about state prerogatives should, you know, work for the states.  And he's right, even in a non-ideal conservative world.  And yet the Federalist Society focuses its efforts, and conservative law students fix their ambitions, on the prestige positions.  (I would add, from here in Alabama, that the number of elite-credentialed conservatives working for social change at the grass-roots level tends to diminish substantially the further away one gets from a Trader Joe's, a good Thai restaurant, and an excellent private school.)  

And all of this is encouraged, in both cases, by elite law professors of either progressive or conservative orientation, who care about their ideas, but care just as much about prestige -- whose careers, in fact, have been molded by a prestige model.

This won't change any time soon.  Whatever else I may disagree with him about, Duncan Kennedy is right about one thing: the reproduction of hierarchy is where it's at, for both conservatives and progressives, and especially the most well-credentialed and ambitious ones.  I don't mean to demean the very real role that principle plays in their views and their work: but in a fair fight between prestige and principle, I know where I will place my bet.  

So Lithwick may be right, as far as her argument goes.  But maybe we should view the disappointment of progressive law students, or of conservative law students -- and both sides, whether they are justified or not, like to think of themselves as embattled -- as a good thing.  If you actually care about achieving meaningful change, progressive or conservative, and not about what your business card is going to say in ten or twenty years, maybe a little disappointment will be good for the soul; perhaps it will convince just a few of today's ambitious young law students that most real "change" takes place outside of elite institutions, and that their ambitions ought to lie elsewhere.  Maybe progressive law students think their heroes have unjustly been denied high office.  But, as John Hart Ely once wrote, "You don't need many heroes if you choose carefully."  Granted, he wrote that about Earl Warren, who served as Chief Justice; but before that, Warren had some important jobs.  

Posted by Paul Horwitz on April 19, 2010 at 03:40 PM in Paul Horwitz | Permalink


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It's always fun to read Horwitz when he builds up a head of steam.

Posted by: Orin Kerr | Apr 21, 2010 1:25:08 AM

This is a good internal criticism of Lithwick's own argument. But it should be pointed out how silly her premises really are. The average "progressive law student" is nowhere near the middle of the U.S. political spectrum. The fact that outlier groups (on the right and left) are disappointed by Supreme Court nominations should be celebrated as a welcome development. The Supreme Court is not a representative institution, but stocking it with fringe partisans should only be a priority for...fringe partisans.

Posted by: Matthew | Apr 19, 2010 11:44:52 PM

As Tony Judt argues so powerfully in "Ill Fares the Land," with the opening chapter just published in the April 29, 2010, issue of the New York Review of Books, there is an absence of a powerful and broad theory upon which progressive forces can argue to try to regain intellectual and political ascendency. With Milton Friedman as the frontman for the enormous expenditures by the right, the free marketeers with their laissez faire ideology captured the intellectual base of our intellectual discussions in this country and significantly abroad.

Posted by: Mike Zimmer | Apr 19, 2010 10:24:24 PM

I'm pretty sure I disagree with Paul about the gist of his argument. Here are few reasons why. First, I don't see why progressive law students can't (1) hope that their heroes are put on the bench at whatever level, especially since the other side has done a pretty good job of it over the last 25 years, and (2) plan careers that aren't aimed at landing them such positions. My sense is that the vast majority of progressive students are in exactly this position. They would like their values reflected in the administration's appointments, but most of them don't expect to have those jobs one day. They are going to work as public defenders and prosecutors, some for big firms, some for smaller firms, some for local government, some for practices in their hometowns, etc. -- the whole array. But they have aspirations for the law, and, even though they have little or no control over elite institutions, they hope that those who do will act in ways that inspire them.

Second, I think this post suggests a false mutual exclusivity between focusing on change at the elite level and change at the policy level. For example, one much discussed source of disappointment is that Obama hasn't appointed more progressives to the district and circuit courts. Here one might respond by saying: yes, but he had more important things to do. Maybe that's right, but maybe not. There is no public evidence that Obama's early nominees to the circuit courts were dictated by preservation of political capital. That's one conjecture, but there are alternative explanations, including that the administration underestimated its opposition's resistance to even non-controversial candidates. Some recent nominations suggest a change in strategy based on that realization. It's not about policy trade-offs. It's about some early mistakes in strategy due to over-optimism about post-partisanship. Anyway, this alternative reading is perfectly plausible, and it provides a place for the efforts of groups like ACS, which are focused on national legal institutions. There are other groups focused on other levels of government. No one is saying they are unimportant or don't have a role to play (indeed, far from it). But there are good reasons to have organizations focused on high level positions as well.

Third, one of the things you learn reading Klarman, et al., is that legal victories have the power to inspire people, to create role models, and to build hope. Those victories may not be enough to change policy on the ground. For that you need protests, elections, legislation, and much else. But even if legal change can't do the work by itself, that doesn't mean it's not important. For conservatives, it matters to have Justice Scalia on the bench, in part because ideas and symbols matter. Maybe they don't matter as much as some judicial supremacists have believe in the past. But you can be a democrat (in the small "d" sense) and a popular constitutionalist, and still think that it'd be good to have some friends in high places.

Posted by: Micah Schwartzman | Apr 19, 2010 8:08:42 PM

Oh, Paul! This is truly an inspired post.

Posted by: Vladimir | Apr 19, 2010 5:07:52 PM

Good question, Marc, and thanks. A couple of answers. First, I won't dig up a link, but I've made something like that argument about legal academics on this blog before. Not that they are required to get out of the business of being legal academics, or to get out of the business of making ideologically oriented normative arguments in their scholarship, but that if you want to effect social change, scholarship is generally a decidedly secondary and not, so to speak, narrowly tailored way to achieve that. That may just mean that you are valuing other things, like the value of a cool academic job and your interest in being a scholar, more than you are valuing the importance of effecting social change as such. That's fine, but a measure of candor about what's driving one's decision to do one and not the other would be a good thing.

Second, I have no problem with the expressive argument you make in the second paragraph, but I would offer two responses. First, the tail shouldn't wag the dog; being seen as important by power players has an expressive value, but actually being important has its value too, and I think it is often subordinated to the desire to be seen as important by power players -- and frankly, by the desire to *be* a power player. Second, on my understanding of expressivism, how we choose to express and enact our views is not fixed but malleable. To that extent, I'm arguing that progressives or conservatives who believe in what they are saying, and really want to effect social change, should be more interested in the expressive meaning of finding "heroes" on school boards and state legislatures than on the board of directors of the Federalist Society or the ACS, and we should encourage that expressive shift.

Posted by: Paul Horwitz | Apr 19, 2010 4:28:46 PM

Paul, this is a very thought-provoking post. Would you indulge a question? I wonder if you would be well disposed to extend these sorts of thoughts to the role of the legal academic. That is, should the legal academic -- which carries the odor of a "prestige" position, and one perhaps much more about "hope" than "change" -- get out of the "progressive" or "conservative" business as well? Should we hope, based on what you describe, that able "progressive" and "conservative" law students *not* choose academics as the surest way to influence policies in the right direction (whatever it may be). As a practical matter, legal academics sometimes have ideological influence, but not too often. Should we hope that this continues, and becomes even more true with time?

I suppose an additional question is whether there is an expressive function in play here. That is, whether or not "progressive" or "conservative" law students might have a better chance to impact policy as they see fit is one measure of success. But it also makes a difference -- to those same progressives and conservatives -- whether their ideologies are *seen* to be taken as important by power players. When we hire a strong progressive or conservative law professor, or when we appoint a strong progressive or conservative judge, we are expressing what is valuable to us, whatever the actual influence of that academic or judge might be on the direction of policy or ideological debate. Isn't that expressive function important for "hope" and "change" as well?

Posted by: Marc DeGirolami | Apr 19, 2010 4:15:18 PM

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