Since it's April, and America's law students have nothing else to do (kidding!), I've done a bunch of talks with student groups and classes in recent weeks. One of the most notable things about these events is the extent to which progressive students, faced with a Supreme Court vacancy, a Democratic president, and a Democratic Congress, are bordering on despair.
Well, maybe not despair, but I have seen very little soaring optimism and heard very few quickened heartbeats in the classrooms I've visited. Mostly I am hearing students ask whether they should be worried that one of the frontrunners for the Stevens vacancy, Merrick Garland, has been so wholeheartedly embraced by right-wing judicial-advocacy groups. (Curt Levey endorsed Garland in an interview with Talking Points Memo, saying of Obama: "[I]f he nominates someone like Garland, there won't be a lot to complain about." National Review Online's Ed Whelan doubled the love, saying, "I think Garland is the best nominee that Republicans could hope for." Poor man. Suddenly even lifelong Garland fans are forced to wonder whether he is Clarence Thomas' Secret Santa.
I have also been asked how it's possible that both Garland and Solicitor General Elena Kagan have managed to make it through prestigious professional careers without offending, insulting, or alienating a soul. Good genes? Gentle hearts? Raised by tender Buddhists in secret underground labs?
These are good questions to which I have no answers. But the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration. Let me be clear that Garland, Kagan, and Diane Wood all have admirers and enthusiasts. But for a generation of law students that has grown up revering American Constitution Society stalwarts such as Dawn Johnsen, Eric Holder, Pamela Karlan, John Payton, Laurence Tribe, Goodwin Liu, David Cole, and my own partner in crime Walter Dellinger, among others, the absence of most of these names from even the long shortlist is demoralizing.
They understand that it's a foregone conclusion that there will be no risky pick for the court. They just aren't sure what makes their heroes so risky. Supreme Court savant Tom Goldstein has laid out better than anybody why the Obama White House has no interest in picking a fight about the Stevens seat this summer. Emily Bazelon has argued that the White House may not even have the stomach to tap Diane Wood if it means offering up red meat to antiabortion groups. Liz Cheney contends that Elena Kagan's participation in a broad national effort to ban military recruiters from campuses because of "don't ask, don't tell" makes her a "radical." By calling even Obama's moderate shortlisters unhinged, conservative judicial activists have knocked any genuine liberal out of play in advance of the game.
This has political implications, certainly, but my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. Not likely, because they're all perceived as smart, well-respected constitutional scholars and judges.