Charles Dharapak/AP Photo
An event honoring Jewish American Heritage Month in the East Room of the White House, May 2010
The success of the conservative legal movement is indisputable. For the last half-century, the movement has implacably moved the locus of American legal thought to the right, ending the heroic era of the Warren Court—which, among other things, outlawed segregation—and replacing it with the current conservative era, which counts gutting the Voting Rights Act as one of its supreme achievements. Should Trump be allowed to fill the seat left open by the death of Justice Ruth Bader Ginsburg, the resulting 6-3 Supreme Court would dominate the judiciary for decades into the future.
The appointment of conservative judges to the federal bench is the most visible aspect of the movement’s success, but it is by no means the only one. Led by the Federalist Society, the conservative legal movement has recruited generations of law students to its cause, created a well-funded network of academic institutions, and placed its acolytes in positions of authority throughout government, the private sector, and the legal academy.
What other choice is there? The law is already politicized. Only by strengthening the liberal side can we restore anything like balance.
In accomplishing these goals, the conservative legal movement has relied on the support of a powerful ally: Republican officeholders. Whenever Republican politicians gain control of the levers of power, they invariably use those levers to advance the movement’s agenda. The Trump administration—which essentially outsourced the executive branch’s legal policymaking operation and judge selection to the Federalist Society—has taken this practice to new heights, but it has been going on for a long time.
Despite the valiant efforts of the American Constitution Society (ACS)—designed to be a counterweight to the Federalist Society—liberals have never been able to create a sufficiently strong opposition to the conservative legal movement. The reasons for this failure are as multifarious as the reasons for conservative success, but among them is the relative lack of support from Democratic officeholders. Democrats in office have tended to keep the liberal legal movement at arm’s length, and as a result ACS has never matched its conservative counterpart in terms of influence or prestige.
Should Joe Biden win in November, he and his administration will have a chance to correct this imbalance. By following a few simple recommendations, the Biden administration could give the liberal legal movement a strong foundation that will endure well into the future.
Hire ACS Members
The first recommendation is that ACS membership should be a soft requirement for every lawyer appointed to a political position within the administration. There are two reasons for this. The first is obvious: ACS members are likely to be people who share a legal philosophy that is consistent with the goals of the Democratic Party. The federal government is a large, unwieldy institution. The direction of such an institution can only be changed by installing philosophically compatible personnel at every level of decision-making, no matter how low in the hierarchy.
Second, such a soft requirement would enhance the reputation of ACS itself and encourage students and faculty with public-service aspirations to join. To see why this is important, consider the Federalist Society. Law students join the Federalist Society because it is well known that membership can boost your career: There are prominent Republican judges who will only hire Society members as their clerks, and the Society’s network exercises significant influence over hiring in BigLaw.
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Law students without strong political convictions join the Federalist Society to enjoy these benefits, but in doing so they learn to repeat the conservative legal movement’s mantras and shibboleths until they become second nature. Enticed by these benefits, generations of law students who might otherwise have been liberals or apolitical have grown into lawyers steeped in conservative ideology.
ACS membership confers far less benefit to a law student’s career. It can even be a liability. In 2010, President Obama nominated to the bench Goodwin Liu, a former board chair of ACS. The Republican minority in the Senate reacted with horror, putting Liu through the procedural wringer by demanding more and more documents from him and eventually filibustering his nomination. In response, the Obama White House did very little. This lack of visible support for Liu was seen by many as a signal that ACS membership didn’t count for much among the Democratic establishment, and the organization suffered a serious reputational blow as a result.
By making ACS membership a soft requirement for legal appointments, the Biden administration can repair this damage. Lawyers who were not members in law school needn’t worry about being frozen out as ACS membership is not restricted to students. Finally, this recommendation is not intended to disparage lawyers who are members of the National Lawyers Guild or other organizations that are to the left of ACS. There should be an exception for these people, as they would bring creative legal thinking and intellectual diversity to the administration.
Recruit Liberal Clerks
Clerkships are one- or two-year stints in a judge’s chambers, taken shortly after law school, spent researching legal issues and drafting opinions. They are considered prestigious and lead to hefty signing bonuses from big law firms. The leg up on clerkships offered by the Federalist Society is one of that organization’s most attractive features. Unfortunately, on the liberal side, vanishingly few judges take ACS membership into account when hiring clerks. The second recommendation therefore is that the Biden administration should identify those few judges and proactively recruit their clerks for appointments.
Like the first recommendation, there are two reasons for this. The first is these clerks are likely to be high-achieving lawyers with their finger on the pulse of the liberal legal movement. The second is that, by recruiting these clerks, the Biden administration would be building the stature of the judge who hired them in the first place.
It may not be immediately obvious why this is important. After all, formally speaking, one circuit court judge has just as much power as any other circuit court judge, regardless of their stature, and the same is true of district court judges. But the truth is more subtle. In the cloistered world of the federal judiciary, not all judges are created equal. A judge with a strong reputation gets her opinions read more broadly and cited more often. The precedents she sets are considered more persuasive and can signal to activist litigators what position to take in future court actions.
One way in which a judge’s stature is enhanced is by having a network of former clerks in positions of influence. The former clerks naturally use their influence to build their mentor’s reputation, whether for genuine affection or because having clerked for a well-known judge is a career booster. And when it becomes known that a judge is good at placing her former clerks in high positions, that judge’s applicant pool becomes more competitive. Thus, by recruiting clerks from liberal judges, the Biden administration would amplify the power of those judges’ legal philosophies, helping move the mainstream of American legal thought back in a liberal direction.
Go Back to School
The third recommendation is that Biden administration lawyers should be encouraged to give talks and network with students at law schools all over the country. The law—especially the common law—changes slowly, as one generation of lawyers replaces the next. This means that the debates that will shape American law in 20 years are being won and lost on law school campuses today. Biden administration lawyers need to participate in those debates and need to win them.
Groups like ACS have student chapters that can provide administration lawyers with a venue to address a law school’s student body. After the public talk, the administration lawyers can spend some time getting to know the leaders of the student chapter that hosted them. These students are likely to be the law school’s most highly motivated liberal partisans, and therefore should be plugged into the liberal legal movement’s network of internships, clerkships, and other opportunities.
It is important that administration lawyers travel to law schools that are not considered “elite.” There is a bad tendency on the part of the liberal legal movement to prioritize its organizing efforts at Harvard, Stanford, and Yale. Meanwhile, the Federalist Society is cleaning up at less elite schools, whose students are more worried about their career prospects and so are more attracted to the Society’s benefits. As a strategic matter, elite law schools simply do not produce enough lawyers to fulfill the liberal legal movement’s needs, hence the importance of expanding the movement’s footprint elsewhere.
Biden administration lawyers should also be encouraged to participate in academic workshops with law professors at liberal legal institutions like the Brennan Center at NYU or the Institute for Constitutional Advocacy and Protection at Georgetown. Legal doctrines usually begin their life in the academy: Professors conduct research, refine their ideas, and write articles about them. Only after this process is complete do judges consider an idea ready to be converted into binding legal doctrine. For example, courts today recognize sexual harassment as an illegal form of sex discrimination largely thanks to the academic work of professor Catharine MacKinnon in the early 1980s. Biden administration lawyers need to have a working knowledge of the ideas that are currently percolating in liberal academic circles, as they will have the strategic awareness to know when and where one of these ideas might be ready to make a debut in court.
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Reach Out to Underrepresented Legal Communities
This recommendation is last not because it is unimportant but because it is an area where the Democratic Party is already on the right track. The Obama administration made admirable efforts to reach out to minority bar associations, women lawyers groups, and LGBT associations. Thanks to these efforts, the demographics of the federal bench have changed dramatically and a diverse generation of lawyers earned its rightful place at the helm of the executive branch’s legal apparatus. Of course, progress is still too slow and there is still a very long way to go until the legal establishment looks like the rest of America. But the Obama administration’s experience provides a good playbook for the Biden administration to follow in this regard.
Strengthening the Liberal Side
There are very many liberal lawyers who will find the recommendations in this article distasteful. In their view, the law should be a disinterested, nonpartisan affair—the calling of “balls and strikes,” in Justice Roberts’s memorable phrase. These recommendations fly in the face of this ideal as they “politicize” and “polarize” the law.
But what other choice is there? The law is already politicized. Only by strengthening the liberal side can we restore anything like balance. The Republican Party and the conservative legal movement have made partisan control of the judiciary a key strategic objective. This is no secret—Mitch McConnell and Donald Trump openly brag of their success. In response, liberal lawyers have two options: Either concede the legal establishment to the other side or create a vigorous movement capable of defending liberal values. The Biden administration should choose the latter.
