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Tuesday, March 21, 2017

Conservative Credentialism

One of the questions that the conservative legal movement faced several decades ago—like any opposition movement does at first—is whether to use exit, voice and/or loyalty to obtain power.  Professional movements that operate in opposition face a unique version of this question.  Credentials communicating technical merit are crucial in public discourse in evaluating the merits of professionals. Steven Teles’s fantastic book on the conservative legal movement puts the question as one of fight or flight: should conservative lawyers seek to generate credentials for their messages and messengers within the existing professional framework, or should they seek to create an alternative framework to credential their messages and messengers?

It is certainly the case that the flight option has been important to understanding the direction of the conservative legal movement.  Organizations like the Olin Foundation and the Federalist Society attempted to create an alternative credentialing mechanism—but still very much operate within the existing structure of the legal profession.  These organizations supported scholarship, for instance, that was not being supported as much or at all before, but it is still largely scholarship by law professors for law reviews.

One reason why the nomination of the Neil Gorsuch is interesting to me is how dramatically he represents the promise of the fight option.  The fight option permits those in the minority within a profession—in this case conservatives within a liberal-dominated elite legal profession—to persuade opponents over the course of a career by building networks with many high-status ideological opponents.  Gorsuch is the product of a private school in the Washington metropolitan area, Columbia, Oxford, Harvard law school, and then a relatively bipartisan Washington law firm (certainly one not as ideologically identified as other law firms).  At each stop, he built relationships with prominent progressive voices.  These friends and colleagues then vouched for him in prominent ways.  Their support—contrary to ideological type, a rarity these days—has become a major means of legitimating the technical (as opposed to, say, ideological) excellence of Gorsuch.  Many Trump Administration officials (including Vice President Mike Pence) and Gorsuch supporters have been citing the support of “even Democratic lawyers” as a means of proving Gorsuch’s technical legal aptitude.  Gorsuch was introduced by former Obama Administration Acting Solicitor General Neal Katyal at today’s hearings, and was supported by many prominent progressive Supreme Court lawyers and law professors.

Something similar has happened politically, as I wrote a few years ago in The New Republic, now that some Republican candidates for political office advertise their Ivy League background as a reason to vote for them.  These candidates for political office use their networks within the Democratic Party elite to identify and promote allies on the other side of the ideological spectrum.  These cross-ideological allies can then campaign for their Republican friend, providing powerful “against type” support for the Republican candidate.  Cross-ideological allies who are not willing publicly to be identified with the Republican candidate can at least introduce them to friends and organizations that can financially support their campaign.  Political candidates do not try to prove their technical merits in the same way that nominees to the Supreme Court do, but political candidates do try to prove that they are competent in some ways—and the fight strategy therefore has similar payoffs.

Posted by David Fontana on March 21, 2017 at 04:59 AM | Permalink


The most important thing to take from this thread is that Joe would be entirely comfortable if Garland had been treated exactly like Bork.

Posted by: YesterdayIKilledAMammoth | Mar 22, 2017 12:55:17 AM

Thank you to everyone for your comments! Orin, I didn't mean to suggest that Gorsuch had chosen fight entirely over and instead of flight. I just meant that his trajectory suggests the salient and underappreciated merits of the fight part of what he has done.

Posted by: DAVID FONTANA | Mar 22, 2017 12:45:29 AM

I have a simpler explanation. Neil Katyal, and many of the other quote-unquote "liberals" who support Gorsuch, works for and on behalf of large corporations, and will benefit professionally if Gorsuch is confirmed, because Gorsuch will consistently rule in favor of large corporations.

Upton Sinclair would seem to have something to say about this phenomenon.

Posted by: Paul Thomas | Mar 21, 2017 10:11:15 PM

ETA: Reading over my comments, "blocked" here means "without hearings" or votes ... cf. Fortas, who had hearings, but did not receive cloture. That is, not simply by some sort of up/down vote etc.

Also, "older judge" references part of why he is a compromise choice. Not someone let's say 49, but someone some liberals thought mean a decade at least less than an alternative.

The sort of non-action for a justice, taking everything into consideration, was as various people noted was particularly special. It wasn't the same as a lower court judge filling spots in panels or something that could be filled with others. Finally, one can argue it all was justified. I myself am not inclined to call it "unconstitutional" though it was a very bad violation of norms.

That is different from specifically what I'm responding to here regarding how the argument is "tiresome" and "wrong" as to actual precedent. As to the third comment, question how useful all of this would be for that. Figure Katyal, e.g., is as much likely to influence Gorsuch when he's on the bench as likely to get an easier time of it from Republicans if President Gillibrand or something nominated him in 2021 or something.

Posted by: Joe | Mar 21, 2017 9:46:35 PM

"Chuck Schumer received a standing ovation at the ACS when he said that the Democratic majority in the Senate should not confirm any Supreme Court appointments for the rest of Bush's term. In 1956, Senate Democrats refused to confirm William Brennan until after the election and this was during a time when Supreme Court nominations were pretty much routine. And in 1968, the Republican minority prevented the elevation of Abe Fortas to Chief Justice."

Whatever Schumer said to an advocacy organization, no actual nominee came up, so we couldn't see if all the Democrats (many much less ideological than Schumer) would have actually done. In 1987, when it did, Bork had hearings, up/down vote & Kennedy was confirmed in 1988.

Brennan was recess appointed. This obviously, unlike Garland, didn't actually block anything permanently. And, he nominated in OCTOBER. Tad different than February. I'll grant quite willingly if Republicans held up things if Garland was nominated in October 2016, it wouldn't have been outrageous though to be the same again recess appointment.

Fortas. First, opposition actually came from Republicans and Southern Democrats. Second, the nomination (for Chief Justice, a tad more serious) came later (June). Third, they actually had hearings, which didn't go that well for him, where he had a chance to answer questions etc. Finally, he wasn't so compromise nominee the people against him in the past put out as a fine choice.

I am sorry you find the critique "tiresome" but explaining how it is "wrong" by comparing it to such rather different examples is dubious.* Your final point is a bit exaggerated too to the extent that this would go back to 1976 or 1986. Bork was a special case & there were past cases that were "a major political issue." Thomas was a special issue because of the sexual harassment matter -- he was likely to be confirmed more easily without that. RBG & Breyer had rather smooth sailing. More like a decade or so now from Roberts on.

Also, was the Marshall confirmation really a "political crisis"? Taney, like many, had opposition. The notable thing with Garland is earlier than in the past, with a compromise choice the other party repeatedly said was fine, an older judge was blocked. This leads to the assumed new normal where only when the Senate and the President share the same party apparently can a justice be confirmed.

Anyway, it was a major civics problem for this to happen last year. There should be strong pushback especially given Trump did not provide any compromise-like choice like Garland to help send just that message.

Of course, people can disagree, as they have, though repeatedly (at times with snide remarks) the replies have left out details or (by a regular here in another blog) skipping over part of what I or others said. But, so it goes.


* This article suggests it just might be difficult to find on point comparisons. http://www.nyulawreview.org/sites/default/files/%20NYULawReviewOnline-91-Kar-Mazzone.pdf

Posted by: Joe | Mar 21, 2017 9:36:13 PM

Jesse, the argument that Judge Garland received uniquely unfair treatment is tiresome and wrong. In July 2007, 18 months before GWB's term ended, Chuck Schumer received a standing ovation at the ACS when he said that the Democratic majority in the Senate should not confirm any Supreme Court appointments for the rest of Bush's term. In 1956, Senate Democrats refused to confirm William Brennan until after the election and this was during a time when Supreme Court nominations were pretty much routine. And in 1968, the Republican minority prevented the elevation of Abe Fortas to Chief Justice.

In past political crises involving the Supreme Court (Marshall/Taney/New Deal), the conflict was resolved in a few years by the appointment of new judges. We are now going on 30 or 40 or more years where every Supreme Court nomination is a major political issue, with no sign of this ending. Unless there is some way that the judicial system can resist the temptation to use its power to actively intervene in the political process, this will be a permanent part of American politics. And not in a good way.

Posted by: PaulB | Mar 21, 2017 6:24:04 PM

Methinks that Gorsuch also has some support from prominent people on the left who think that his confirmation is a foregone conclusion anyway, and believe that their ecumenism could be helpful if and when they get nominated to a judgeship in the next Democratic administration.

Posted by: David Bernstein | Mar 21, 2017 4:23:18 PM

It's been a while since I read Teles's book, but I'm not entirely sure Gorsuch represents the "fight" option. At Columbia, he founded a conservative alternative paper. At Harvard, he worked on the Federalist-Society-supported conservative alternative journal (JLPP, not Law Review). He then practiced at a firm and worked for the Bush Administration, and he was a regular speaker at Federalist Society events. There are "flight" aspects of the story, Columbia, Harvard, etc., but there are also "flight" aspects (JLPP etc.). I think it's a somewhat mixed picture.

More broadly, Gorsuch's friends on the left remind me a lot of Elena Kagan's friends on the right. Kagan had a lot of conservative lawyer support because she was friends with so many people on the right who knew and liked her. Gorsuch has a lot of liberal lawyer support for the mirror image reason.

Posted by: Orin Kerr | Mar 21, 2017 2:19:48 PM

This is an interesting point I hadn't really thought about. Thanks for bringing it up! I wonder if a discussion about why this seems to only work one way is in order: Gorsuch will be confirmed, but Garland didn't even get a hearing. Both were acknowledged as great jurists by bipartisan supporters, but bare-knuckled politics can better explain why one will sit on the high court but the other will not. So maybe the "fight" option is less stable than it appears -- when the shoe's on the other foot, it's not clear that ideological liberals won't retaliate -- or perhaps there is more "flight" going on underneath the surface (a pretense at being part of the legal establishment, but really having created an alternative power structure -- in this case, GOP control over all three branches -- that gives conservatives access to institutions of power).

Posted by: Jesse Stricklan | Mar 21, 2017 5:48:16 AM

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