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.
So can someone please explain to America's progressive law students why most of the liberal speakers at their national conference are already confirmation war punch lines? Is there some kind of false equivalency between the two groups that makes ACS "outside the mainstream" while the Federalist Society not only represents the mainstream but renders anyone outside of it hysterical? Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?
The national debate about the courts has become so wildly unbalanced in recent years that a whole generation of young progressive law students has watched the teachers they revere sent up as constitutional buffoons. Whether it's Harold Koh (trashed in the media on phony charges of wanting to bring shariah law to the United States) or Goodwin Liu (torn apart with cartoonish claims that he wants to reshape all of America using the Constitution as his weapon of choice), these nominees are revered by their students precisely because they have been willing to talk and write in bold ways about liberal jurisprudence. That shouldn't be a disqualifying proposition, just as Justice Antonin Scalia's conservative jurisprudence was not.
Conservative judicial activists have been emboldened to take the position that any liberal who has ever offered a strong and persuasive defense of a nonoriginalist, nontextualist methodology is both dangerous and unserious. The lesson for many progressives is that the only way to be taken seriously as a viable nominee is to be either perfectly opaque or perfectly silent. I don't know how many times you need to see your heroes lampooned as crazies on Fox News before you begin to see the value in never speaking or writing another controversial word. It's not clear how it serves the country or the judiciary to have one whole side of the debate grow up cowed and embarrassed to voice their views.
Goodwin Liu faces a brutal confirmation fight tomorrow precisely because he's been brave enough to speak openly about how he thinks about the Constitution. Strip away the hysteria and distortions, and that's all he represents: a voice on one side of a centuries-long debate about how to interpret that document. Tom Goldstein (him again!) put it well when he wrote, before Liu's last (scuttled) hearing:
If Liu's opponents succeed, it is hard to see why the president would later nominate or the Senate would confirm any candidate who openly embraces the long-prevailing view that the Constitution is written in broad terms precisely in order to account for the varied problems that a huge and dynamic country would confront over the centuries. The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.