What's the matter with Stephen Breyer (and Merrick Garland)?

Why Democrats can't find a wartime consigliere

(Paul Marotta/Getty Images)

I recorded a really interesting podcast episode with Maya Sen a few weeks ago that got me thinking about a theory on some of the perverse impacts of education polarization in the political field.

One part of the context for our discussion is Justice Stephen Breyer’s perverse refusal to strategically time his retirement, coming on the heels of Justice Ruth Bader Ginsburg’s disastrous refusal to strategically time her retirement. But another related datapoint is the bizarre conduct of the Joe Biden Justice Department under the stewardship of almost-was-a-justice Merrick Garland where the DOJ is still defending Trump in litigation on everything from his shady hotel dealings to his litigation with alleged rape victim E. Jean Carroll.

It’s of course not that abnormal for DOJ to have continuity across administrations or to default toward legal positions that defend presidential prerogatives in general. But the official position of virtually everyone who matters in the Democratic Party is that Trump’s misconduct and lawlessness constitute an ongoing threat to the stability of the republic. And unlike a normal ex-president, Trump remains very actively engaged in politics and is clearly positioning himself to run for president again in 2024. He even claims to be aiming to have himself reinstated as president this summer.

So looking at Garland, it seems like Biden has unaccountably equipped himself with a guy who’s not a wartime consigliere. But then Breyer isn’t a wartime consigliere either. Nor was Ginsburg. Nor was Obama’s solicitor general Neal Katyal, who went to bat for Neil Gorsuch. Nor is Noah Feldman, who’s in the New Yorker saying Breyer shouldn’t retire.

Yet there’s something very strange about Democrats’ apparent difficulty equipping themselves with smart lawyers who’ll do work for progressive causes. Sen’s research with Adam Bonica, Adam Chilton, and Kyle Rozema shows that lawyers are more progressive than the general public, and law professors are much more progressive than lawyers in general. It should be easy to hire elite lawyers who are committed progressives. But instead, Democrats keep tapping the Washington Generals for key positions.

What my conversation with Sen convinced me of is that these facts are actually related. Because conservative legal elites are scarce, the GOP has crafted a purpose-built legal arm of the conservative movement. But because legal elites tilt left, Democrats instead find themselves captive to and paralyzed by the self-interested nostrums of the legal elite. And I worry that this is happening with “expert” communities writ large.

Political scientists vs lawyers

The other day I mentioned Democracy’s effort to ask a bunch of law professors to write a new constitution from scratch.

Several political scientists on Twitter noted, rightly I think, that this sounds more like a job of political scientists. Similarly, when Joe Biden picked an expert commission to make Supreme Court reform recommendations, it was very heavy on law professors and light on political scientists. And that’s generally how it goes in the United States; commentary on constitutional issues is dominated by professors at very prestigious law schools. What those law schools do, in practice, is train the next generation of corporate lawyers. But the path to a really prestigious corporate law job is to clerk for a federal judge — and you get those clerkships through your schoolwork. So the professors themselves are deeply enmeshed in the judicial system they’re analyzing, and they tend to adopt a worldview that flatters the system’s sensibilities.

I’ll always remember that happenstance led me to a happy hour during the Bush/Obama transition winter featuring a bunch of prominent liberal law professors. I figured I’d ask them who Obama would likely appoint to the Supreme Court. They almost all named someone I’d never heard of, Sonia Sotomayor, so I figured she must be really great if there was such strong consensus.

But no! They were sad about the choice — she was really only being picked because Obama wanted a Hispanic, and she wasn’t at all the best option.

So then I was curious. What issues was she bad on? What was the worry? But they didn’t think she was bad on any issues, they just thought she wasn’t smart enough. One said she didn’t have the kind of “sparkling intellect” one likes to see in a Supreme Court justice. I said I wasn’t sure I did want to see sparkling intellect on the court. I wouldn’t want, like, a total moron. But the most important thing is to understand the stakes, to write clearly, and to make the right decisions. And of course, that’s exactly what Sotomayor does.

If I needed to hire someone to solve difficult math problems, I’d basically want the smartest person I can find. And I think the professors like to think of constitutional law as somehow similar to solving difficult math problems. But it just isn’t. It’s really easy to imagine the smarter of two choices being the worse justice for any number of reasons.

At any rate, what I love about Sen’s work is that she studies the judiciary as an actual human institution. It turns out that judges with daughters issue more feminist rulings than judges with sons, and that the effect is driven by Republican appointees. Black judges are overturned more often on appeal than white judges, and the effect “persists after taking into account previous professional and judicial experience, educational backgrounds, qualification ratings assigned by the American Bar Association, and differences in partisanship.” Clerk-hiring has a modest but real impact on case outcomes. Stuff like that. The courts are made of human beings and they exhibit roughly the kind of bias we expect to see from human beings.

Judicial politics and the experts

One thing Sen has shown, working with Adam Bonica, is that lawyers are more liberal than the general public. And this is actually especially true of the fanciest lawyers. All 20 of the 20 most prestigious law firms skew left of center, and so do all 20 of the 20 largest law firms. There are conservative lawyers, of course, and conservative law firms, but even most prosecutors are left of center (the big conservative practice area is oil and gas).

Law professors are especially left-wing.

These facts tend to set off a tug-of-war over the question of who gets to be a judge — not just in the federal judiciary but in state courts too. The official narrative of the American legal community and political establishment is that judging is a non-partisan, non-ideological, non-political activity that requires technical skill and technical judgment. So it’s understandable that a lot of states have, at various points in time, had different kinds of expert commissions that represent local legal elites and recommend people for judgments. The American Bar Association also does a thing where they rate the qualifications of candidates for the federal judiciary.

But Republican Party politicians aren’t suckers. They understand that if you defer to legal elites, you’re going to get left-of-center outcomes. So Sen and Bonica show that Democrats tend to try to bolster the role of legal elites while Republicans try to push in a direction of general partisanship:

What predicts attempts at judicial reform? We develop a broad, generalizable framework that both explains and predicts attempts at judicial reform. Specifically, we explore the political tug of war created by the polarization between the bar and political actors, in tandem with existing judicial selection mechanisms. The more liberal the bar and the more conservative political actors, the greater the incentive political actors will have to introduce ideology into judicial selection. (And, vice versa, the more conservative the bar and the more liberal political actors, the greater incentive political actors will have to introduce ideology into judicial selection.) Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform. For example, under most ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, push reform efforts toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. 

I think the most important thing about this is that it’s a double movement.

On the one hand, the liberal lean of the bar associations gives Democrats a kind of propaganda upper hand — they can advance a partisan agenda while claiming to simply be standing for neutral experts. But the flipside of this is that Democrats expend energy and political capital trying to bolster elite legal institutions per se, while Republicans are committed to actually just doing partisan politics in a more straightforward way.

Institutional capture

This, I think, illustrates exactly the problem with Breyer and Garland and Ginsburg and Katyal and Feldman.

Because Republicans know that they absolutely positively cannot count on the tippy-top of the legal prestige pyramid to generically turn out legal elites they can rely on, the GOP has built a formal counter-institution in the Federalist Society. The Federalist Society isn’t just lowbrow partisan brawlers or totally unprincipled hacks, but it is definitely part of the conservative movement, and part of its premise is an (accurate) assessment that just leaving constitutional law up to law professors and the bar association would be deadly to conservatism.

Democrats can get away with not doing that because prestigious legal institutions default to left-of-center personnel.

The problem is that nobody is beyond self-interest or myopia. Railroad workers’ unions support all kinds of positions I agree with, but their particular ideas about railroad regulation tend to be parochial and bad. That’s just how it goes. If you ask the elite members of any profession their view about a matter specific to the profession, they are going to tend to veer off in some bad directions. So while Democrats have in some sense captured the elite pillars of the legal profession, they have also been captured by the self-interested values and ideas of legal elites.

Garland and Breyer and all those folks serve a power they think is higher and more important than progressive politics — the self-regard of fancy lawyers. The problem is that they are wrong.

Experts everywhere

In the particular case of the legal elites, I think the Republican strategy basically works with no flaws since the putative expertise at hand here is largely fake.

But in other areas, this same basic dynamic is really troubling. Because it’s actually not that there’s anything particularly special about lawyers. Essentially any field of endeavor that involves people with advanced degrees involves large leftward tilts. Even a field like chemistry has a 5:1 ratio of Democrats to Republicans in academia.

The expertise of chemists, physicists, and biologists isn’t fake.

But this leaves Republicans with a very tricky problem when confronting technical issues. Either they can defer to experts who fundamentally don’t share their big picture values, or else they can try to operate without much in the way of technical expertise. We really saw this at work during the Covid pandemic, where in the middle of a very tense situation, tons of public health experts decided to sign a letter endorsing the George Floyd protests. And to be clear, the letter was not a generalized endorsement of outdoor activity as safe — which I think in retrospect would have been good advice to give. Instead, it said, “we wanted to present a narrative that prioritizes opposition to racism as vital to the public health, including the epidemic response.”

As a narrative, it’s a fine narrative, but it really shone a light on the fact that this is a field full of progressives, and it indicated a lack of desire on the part of professionals to even try to sharply delineate between expert technical advice and generalized opinions about social values.

And just like the Bar Association can’t trick Republicans into not appointing conservative judges, nobody on the right was actually fooled by this; it just underscored that it would be dangerous to conservatism to rely too much on public health experts. Unfortunately, in the middle of a pandemic, it is also very dangerous to do what Trump did and ignore public health experts while spending a significant portion of time wallowing in utter crankery.

When I wrote about QAnon, I noted that there’s not much reason to believe that the population of nutjobs has actually increased from where it was 15 or 20 years ago. The difference is they used to be more evenly distributed across the parties, so there wasn’t the same danger of politically empowered nutjobs. The credentialed experts have also come to be more clearly aligned with one party, and that’s unhealthy in its own way too. Whichever party you happen to prefer, the fact is they are going to alternate in power, and it would be better for both of them to have access to qualified experts they trust and for neither of them to be dominated by lunatics. The current alignment strikes me as very inherently unstable across a number of dimensions of which Democrats’ fancy lawyer problem is just one currently salient example.