Why Democrats can't find a wartime consigliere
Just to elaborate on an unstated element of Matt's thesis: isn't it a bad thing that law is expected to require great intellect? We understand why science requires great intellect: it's because the natural world wasn't designed to be humanly comprehensible. But the law is a human creation and if only super-smart people can be really good at operating the law, then it isn't well designed.
When Ruth Bader Ginsburg died and the tributes came pouring in I couldn't help thinking that women in the UK have roughly the same rights as their counterparts in the US. Plenty of British feminists as gifted as RBG fought for those rights but for the most part they didn't do it by filing lawsuits and issuing judicial opinions, because that's not how Britain's political system works. The perception that constitutional rulings protect our rights might be largely an illusion, and if it also justifies diverting a huge amount of intellectual firepower into an inherently non-productive sector then it's actively harmful to American society.
Looks to me like there's a definite over-representation of lawyers in the Slow Boring commentariat.
Part of this issue though is just that actual facts often conflict with conservative values.
I’d argue that a lot of the distrust Republicans have towards experts is because of things like evolution and climate change. A lot of conservatives don’t believe in evolution for religious reasons, and so when scientists keep telling them that evolution is true, they distrust scientists. And climate change poses serious challenges to right wing economic ideology, so conservatives generally think that climate scientists are full of it.
Of course technically the COVID crisis was a separate issue from evolution or climate, but once you start thinking that entire fields of science are bogus it’s not hard to see how you’d lose trust in experts and science generally.
The problem is that we have portions of our society that deeply believe things that it turns out just aren’t true. That is naturally going to end up pitting those people against experts.
I maintain that the legal profession and legal academia would be better off if we treated law school like trade school and less like a quasi-academic intellectual pursuit. An intellectually demanding trade, but a trade nonetheless.
"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."
Most of the time, on most of the issues that come before the courts, this is true.
It's a basic premise of rule of law that you should be able to know what the rules are ahead of time. And that means the definition of a good judge is that competent lawyers, knowledgeable in the area and having researched the relevant authorities and precedents, are able to predict ahead of time with reasonable certainty how a judge will rule on the issue -- without knowing the identity of the judge.
Obviously the Supreme Court and state supreme court are a little different. The questions that reach them tend to be those where the precedent doesn't provide any reliable guide.
Matt, I did not like this take at all. Breyer is a great judge (who I don't always agree with) and the Republicans aren't going to be able to hold out for 3 years on a Biden nominee. I agree with you about the public health letter, but I don't remember any group of lawyers saying it was ok to break the law and loot and riot (although some lawyers did loot and riot). The desire to put ideologues in power on the bench is one of the most dangerous ideas to the institution of justice I can imagine. You may not see the judicial system as fair and impartial, but it's one of the best in the world and other countries envy it. If the entire country thinks its corrupt and only a mechanism for enforcing power, however, where does that leave us? Consider how the Trump election lies would have played out if there was no confidence in the legal system. You should take a listen to Breyer's lecture at Harvard Law this April where he talked about the importance of confidence in the Supreme Court. https://www.youtube.com/watch?v=bHxTQxDVTdU
I listened to that podcast, and was slightly terrified. This is a point in which American liberals are just as idiosyncratic wrt to the rest of the world as conservatives. The idea that you should embrace the *full* politicization of the judicial branch and the DoJ and treat them as you would treat them just like cabinet positions or whatever is just contrary to, as far as I know, most democracies in the world, including among progressives. In Brazil, I see this discourse in exactly one group, the more populist Right (it's just less polite and not infused with academic research to give it a veneer of sophistication). And the Supreme Court there is muuuch more active in day to day public affairs.
Also, it is my understanding that that was a very incorrect description of what the AG is doing wrt to Trump. He's not exactly defending Trump, and he's basically following the law.
Democrats tend to be much clearer eyed about how experts can have agendas distinct from their technical expertise when we're talking about economists.
Matt's equating distrust of academia with a distrust of expertise. But there are many types of expertise, and self-described experts forget that just because *they* know something doesn't mean other people have reason to *believe* that the experts know what they're talking about - experts don't sufficiently explain to the public why they should be listened to; they just say 'trust me' without thinking about how fragile trust is and how important institutions have been in building trust in expertise (and often they don't think of what hard work it was to build up that trust in the first place). The dilemma of American 'elitism' is that America's elites aren't that elite. They're people who think that because they don't have to justify themselves because they have the proper credential, title, position, or stuff on their CV. Past generations built up credibility into these positions by engaging the (relatively ignorant) public, new people come along and think they should just be able to inherit the credibility built by folks in the past because (a) they're smart and know what they're talking about and (b) other people in their position were deferred to, so they should be deferred to as well. But that's not how it works.
Meanwhile the reason you get stuff like a left-slant in academia often is because of self-selection: the liberal engineers and economists and whatnot *prefer* academia; whereas the ideologically indifferent and conservative prefer the money. It's why Republicans are also more willing to pluck people from the private sector to staff administrative positions; they don't oppose expertise, they defer to *different* experts who have more credibility with them. From the Republican POV, who would you expect to know more about oil and gas - a person working in that field every day, or a tenured professor who is protected from the consequences of being wrong about stuff?
Also, no shit Garland and Breyer are institutionalists focusing on rules and whatnot. That's the gist of what the law is. They put tremendous emphasis on the idea that it took a really really long time to build any credibility in these things that they care about, and going full pit-bull partisan will only play into the hands of the people who want to tear down the institutions for their own partisan advantage. They've been around long enough to *know* how hard it is to build institutional credibility and how easy it is to blow it up.
Also, the Sotomayor quip ... remember when Jeffrey Rosen got ripped apart for pointing out that she wasn't a Marshall or Brennan? And if you really really don't care about the significance of having a 'sparkling intellect' on the court ... I point you to Antonin Scalia. He (a) said Bill Brennan was the Justice in his lifetime who had the most impact on the court and (b) had a MASSIVE impact on American jurisprudence by arguing such a strong case for textualism that he *converted his liberal opponents* into swinging his way. Elena Kagan is as much of an arch-textualist as Thomas, Gorsuch, and Barrett are and observers are generally are aware that Kagan and Breyer are doing the intellectual heft to weave majorities in a lot of these cases.
Also, the Conservative Legal movement told Trump to F off in the election challenge cases. They take their own rhetoric seriously and it's basically been in the last three years that right-wing demagogues are realizing that their own pointy-heads actually believe in their own ideas as opposed to just being stalking horses for right-wing policy. See: Hawley's freaking out post-Bostock when Roberts and *Gorsuch* delivered the 6-3 majority.
Grading lawyers’ work as “good” or “bad” based on outcome is silly. Johnnie Cochran wasn’t “good” or “bad” because he successfully defended OJ Simpson. What Garland has done in the E. Jean Carroll matter is follow the law. This isn’t a case of institutional capture or poor consigliere-ing or whatever you’re calling it. His legal obligations here are clear and *non-discretionary*: https://reason.com/volokh/2020/09/13/libel-lawsuits-against-federal-government-officials-e-g-senator-warren-or-president-trump/. Dragging him for this because “Trump is bad” — no matter how true that might be! — is lazy. Advocate for a change in the law, if you want, but don’t blame the lawyers who have no choice but to follow it.
This pattern where conservatives build their own partisan alternatives to elite institutions (or least recruitment tools like FedSoc) applies generally to social/political institutions, not just to law. They have Fox News which will uncritically parrot the next GOP talking point even if it completely negates their last talking point; Democrats have the other cable news channels, which reliably lean left but aren't nearly as subject to partisan control, and so they aren't really part of a unified strategic apparatus. The same could be said of policy "experts," particularly liberal vs. conservative economists. In fact I think this is least true in the real sciences, since you can't really build a conservative alternative to chemistry or even epidemiology at this point.
This seems similar to how journalists are quite left-leaning but Fox News is arguably more effective in partisan terms (because Fox News had to be created with more explicitly partisan goals)
This is too interesting and useful to be behind the paywall.
This post summarizes some truisms that even liberals agree are true.
1. Liberals play by the rules. Conservatives fight to win.
2. A liberal won't even defend his own side in an argument.
They just feel dealing with conservatives on their own level is beneath them. It leads to all the handwringing about how McConnell continually steals Schumer's lunch money.
It will be interesting to see how the Supreme Court decisions split and divide now that conservatives essentially can do as they please and which of the liberal justices will go along for the ride.
Wow! I knew academia was disproportionately progressive but not to this extent. No wonder conservatives hate college education. As a retired professor let me defend my profession. In over thirty years of university teaching, I meet lots of progressives. However, I met no one who was actively trying to propagandize students. That said, one of the skills university education attempts to cultivate is critical thinking. Critical thinking is the mortal enemy of sacred cows. Since conservatism centers on the worship of those beasts, it is unsurprising that academics and successful students are more progressive than the non-college educated. Anticipating comments, let me concede that progressives too have sacred cows.
You write: "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."
The actions of the Democratic Party show this to be untrue. Having Trump around motivates their base, keeps the left flank inside the tent and turns off surburban women. They desperately want Trump to run in 2024 even if that means losing some Black and Hispanic votes along the way.