Apr 19, 2010
Fancypants Lawyers and the Progressive Constitution
Had Dahlia Lithwick written this article on “the sad state of the liberal law student” after the Goodwin Liu hearing and after Justice X’s impending selection and confirmation, perhaps it would have said something. But it doesn’t.
This article has nothing to do with law students at all. It’s a rehash of an article written four hundred times in the past year about how the confirmation process and the media and whomever else have made a non-Scaliaesque school of constitutional interpretation allegedly radical. That’s true and awful. But repeating that and trying to make it about students undercuts the actual issues about conservatism and progressiveness that law students should be sad about.
What liberal law students should be sad about is the fact that prestige in the legal world continues to be judged mainly by grades and clerkships—neither of which involves service, activism, or other things that a moral and legal progressive might want to undertake as a lawyer. Then there’s the fact that clerkships are with judges, most of whom, at this point in history, are relatively conservative, consisting of many more R than D appointees. Then realize that clinical practice, writing, volunteerism, pro bono work—all of which might make you a pretty good lawyer—do not carry any of the heft of clerking or of Law Journal. That is one reason that a lot of fancy lawyers are fancy conservatives and get more fancy words out there about how fancy the Constitution is.
This situation is bad for law students beyond the ways in which it narrowly defines who our legal heroes can be. It’s bad for law students in that it constrains opportunities for being successful and being a lawyer. And it’s bad in that the next generation of judicial candidates are going to be a lot like the current crop so long as these patterns continue.
What would be un-sad for me? Not a nice word from Orrin Hatch toward a constitutional progressive—don’t really care what he thinks. What would be un-sad is the selection of a justice not from Harvard or Yale, or not from the bench, but rather with a different background, and with some real successes as a teacher or a writer or a career lawyer.
What is the Constitution about? From a progressive perspective, it’s about protecting and building a better America. Sotomayor was a good pick in putting a real-life part of that narrative on the bench. Obama should do make another pick that tells, perhaps in another way, about what good lawyering and good law practice is really about. Those kind of picks on the court will change what being a good law student is about, and will change how we judge students, lawyers, judges, and their accomplishments. That gets us the next generation of legal heroes who are really progressives.
The case for a progressive version of the Constitution cannot just be made on paper through logic and appeals to Thomas Jefferson’s diary entry from fifteenth February 1791 or whatever. It’s made through showing how the law can work for real people and be practiced by real people. A pick that tells that story would make the case for a progressive version of law better than any Cass Sunstein article or Liu defense of a living Constitution ever could.