Legal Commentary

Micah Schwartzman offered some thoughtful arguments against my earlier, somewhat impassioned post arguing that if progressive (or conservative) law students are dispirited by the lack of proper "heroes" on the Supreme Court, perhaps that's a good thing, inasmuch as they ought to be focusing their efforts on other paths to genuine change, especially local elective office.  We've had some of this debate before, and I'm always grateful for his commentary and disagreement; some of his views can be found here.

As in many such arguments, there are deep underlying disagreements but also much common ground, and we shouldn't lose sight of either.  Here's some of the common ground.  I agree with Micah that hoping for role models on the Suoreme Court or the lower federal courts, and working for change at a more local and political level, are not mutually exclusive.  Presumably, Micah agrees with me that that latter is a good thing as well.  And I agree with him that "legal victories have the power to inspire people, to create role models, and to build hope," and that it is possible to "be a democrat (in the small "d" sense) and a popular constitutionalist, and still think that it'd be good to have some friends in high places."  And I believe he agrees with me that if we are more chastened today about the importance of judges as opposed to other vehicles for social change, that is not a bad thing.

But I think Micah is too optimistic about how, and how well, these two impulses -- to do good and to do well, to hope for friends in high places and to work for change in "low" places -- coexist, especially in elite circles like those that we are, to be frank, both talking about.  Micah writes: "I don't see why progressive law students can't (1) hope that their heroes are put on the bench at whatever level, especially since the other side has done a pretty good job of it over the last 25 years, and (2) plan careers that aren't aimed at landing them such positions. My sense is that the vast majority of progressive students are in exactly this position."  Of course, in practice, most progressive (or conservative) law students don't end up on the Supreme Court, and some of them -- but not enough! -- end up in the hinterlands or in local elective office.  

But it makes a difference what goals they set for themselves and who they view as role models.  I think Micah overstates things to say that a sufficient number of them "plan careers that aren't aimed at landing them such positions."  The path to career advancement, for both progressive and conservative law students, often is not aimed at working for grass-roots change at the local political level and in non-elite institutions and geographical locales.  Some of them may end up there, of course; but the typical path to shoot for is a long (or, if one can manage it, a short) march through the usual-suspect elite institutions.  I don't think that's unrelated to the role models they choose -- and to the career paths that their role models, whether at the Federalist Society or the ACS, explicitly and implicitly encourage them to take.  Maybe some of them end up taking the road less traveled, either by design or by default (especially by default).  But I think we would be better off, and see a higher yield in terms of law students doing genuinely useful things, if we encouraged a very different mind-set, one that treats those "low places" as the highest model of aspiration, and the "high places" as of decidedly secondary importance.  The fact that we talk, naturally enough, in terms of "high" and "low" places, the fact that Micah has to write, "No one is saying [that groups focused on something other than the elite circles of the Supreme Court and a few other institutions] are unimportant or don't have a role to play," suggests something of the impact on our ambitions that our focus on elite careers and institutions may have.

Micah has more to say, and I encourage readers to take a look at his comments.  As I said, there's common ground, but also deep disagreement.  Without trying to enlist him without his consent, I think I take a more Rick Hillsian view of things.  I am reminded of my brief stint in journalism, when I went to DC to do a bunch of informational interviews with various luminaries in the field.  The famous Johnny Apple, of the New York Times, told me that if I wanted to be a good and useful journalist, I should stay the hell away from Washington: too many people want to start their careers there, rather than picking up skills and doing useful things elsewhere and maybe, maybe, ending up in the capital.  Of course, I disregarded his advice.  And of course, despite Micah's optimism, many elite law students also disregard the possibility of taking the path to change through the "low" places; they would, understandably, rather be a small cog in a fancy big wheel, like the federal appellate courts or some big firm that mixes 95 percent remand oppositions with 5 percent important pro bono work.  Of course, it was easy for Apple to say what he did -- his own path involved boarding school, Princeton, Columbia, and the Wall Street Journal -- and it's easy for me to say what I have, although my own path has involved big law firms and so on.  But Apple was right.  Countless numbers of talented people have been wasted, relatively speaking, in elite institutions, compared to the good work they could have done in places that truly needed them.  To that end, even if we understand that we won't all end up in the same place as our heroes, it makes a difference to our life-plans who our heroes are in the first place.  It strikes me that the most important figures working for progressive or conservative social change can be found elsewhere than in the same few elite institutions, and that a focus on this might affect how we think about the "dispirited" status of elite ideologically oriented law students.