"I Used to Go With the Wrench"

Mark Tushnet has a nice explanation for why he signed the Harvard Law professors' letter. I think there is an important gap in his account. It explains why he might feel a professional, vocational duty to speak out, but not why he would sign a group letter as opposed to engaging in some other form of communication. Perhaps Will Baude's measured, reasonable post on the Divided Argument blog fills that gap a little, although that depends on Mark's own views. (Divided Argument, which now includes some of the finest former Volokh Conspiracy bloggers, requires immediate bookmarking. I don't know their reasons for moving over there and quite agree with those reasons.)

I remain generally lukewarm about such letters, both because I believe their politics are often counter-effective and because I dislike signing on to other people's language. Nor do I see much point in a national push for such letters. (It doesn't much matter, to be sure, since I am locked into a half-convenient, half-humbling cycle, in which I rarely sign such letters and am rarely asked to.) But I do think the closing passage of Mark's post is entirely right:

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

Of course opinions will vary about when this language applies. I think political parties, at least, invoke variants of this sort of language all too often. (Romney?!?) Rightly or wrongly, I would not have found it as applicable during the first Trump term, despite my dislike for his policies and rhetoric in those years and despite some clear descents in that time into corrupt personalist rule. (See, e.g., Ukraine, Phone call to.) The difference might be a matter of error on my part. Or, as I would prefer to think, it had to do with the presence of a greater number of administration guardrails. Those guardrails included Republican officials within the executive branch who, when necessary, fulfilled their oath-given duties, and honored their offices, by ignoring or subverting their boss's infantile "desires." Those officials believed in the sorts of norms and processes that allow for ordinary politics, in which vehement disagreement over policy does not demand the kinds of statements that are called for in a more genuinely or incipiently authoritarian regime.

Of course the guardrails have been cast off from the Boss Baby's crib, the family cash registers are ringing, agencies and the DOJ have signed on to exact revenge for personal slights, and bizarre and arbitrary action reigns. So, yes, it is one of those times.

But I think there is another excellent bit of literature one might call to mind for our current moment. It's a passage of dialogue from the sentimental but well-written movie Good Will Hunting. 

Will: He used to just put a belt, a stick, and a wrench on the kitchen table and say, “Choose.”
Sean: Well, I gotta go with the belt there, Vanna.
Will: I used to go with the wrench.
Sean: Why?
Will: Cause fuck him, that’s why.

Of course the application of the quote is imperfect, although it does have a certain zing that Lowell lacks. The most important reason it's imperfect is that people like law professors are, as a discrete category, at present mostly safe from harm, aside from the general destruction of the economy, the possible loss of their jobs or defunding of universities, and so on, in addition to the lashes they might suffer personally on some other basis. The damage from such things is immense but mostly collateral. Speaking out for us, as lawyers or citizens, may be an indefeasible, urgent moral duty but is also, for now, a luxury. We certainly suffer no reputational harm within our own particular community by doing so.

But in a country that makes deals with vicious autocrats, bribing them with public money to rent space in torture camps, sends the "wrong" people there through "administrative error," and then invites the courts to mind their own business--in a brief that treats the question whether or not it has rushed to correct its error as an incidental item not worth mentioning--that luxury status is nothing to be proud of. (I imagine that natural law and "unitary and discernible" truth have something to say about such conduct. And I imagine the answer is not a shrug of the shoulders.) Of course we have a duty to speak up against this regime. And the more often, and casually, the regime employs state power for its cheap, ugly, punitive ends, the stronger that duty is. Because...well, read the quote.