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.