Judge Brett Kavanaugh is a conservative who has flourished in institutions dominated by liberals. Over the course of a long legal career, he has cultivated cordial relationships with a number of prominent liberal legal academics and lawyers, some of whom spoke on his behalf after he was nominated to the Supreme Court. Since Christine Blasey Ford came forward to accuse Kavanaugh of sexual assault, many of these erstwhile allies have pulled back, presumably out of a sense that he wasn’t the man they thought they knew or, more cynically, because they concluded that continuing to defend him would be a bad career move, or some combination of the two. But even before then, it was clear that something had changed.
There is no question that the sexual-assault allegations against Kavanaugh have had a profound impact on how he is being perceived by his peers. Across the political spectrum, some have concluded that the claims are credible and disqualifying. It is also true, however, that the elite legal left’s tolerance for the elite legal right has diminished in recent years. Faculty and students at many elite law schools made it clear, long before the allegations came to light, that they found Kavanaugh's views and arguments disqualifying—not evidence of reasoned disagreement, but rather, of an illegitimate and immoral agenda. Those on the faculty who had routinely encouraged their prize pupils to apply to serve as clerks in Kavanaugh’s chambers were attacked for the advice they’d given, leaving at least some professors with the sense that their off-the-cuff remarks would henceforth be subject to intense political scrutiny. What we are witnessing is not just a fierce confirmation battle but an ideological and cultural phase shift. The modus vivendi that has allowed conservatives like Kavanaugh to build their social and cultural capital in liberal institutions is coming undone.
Further reading: Kavanaugh’s fate will have a massive ripple effect.
The underlying reason, I suspect, is the decline of centrist liberalism. Centrist liberalism has been the dominant tendency in the elite professions for decades, yet liberal professionals have long felt obliged to present their beliefs as the product of neutral common sense. This norm of neutrality created an opening for both leftists, who reject the conceit that centrist liberalism is pure pragmatism bereft of ideological content, and elite conservatives, who’ve appealed to the prevalence of these professional norms among legal liberals to secure a seat at the table.
Consider the role of the Federalist Society, which has played a central role in the rise of Kavanaugh and countless other elite legal conservatives. As the political scientist Steven Teles observes in The Rise of the Conservative Legal Movement, it has succeeded on elite liberal campuses precisely because it styles itself as a vindicator of norms of neutrality, including the valorization of civil and open debate. From early on, the Federalist Society’s recruitment strategy has been to host debates between conservatives and libertarians aligned with its legal sensibilities and thinkers to the left, the message being that its partisans are more than capable of holding their own in a neutral forum. Crucially, the Federalist Society and all that it represents has been buoyed by centrist liberals who believe as a matter of principle that elite law schools ought to reflect a range of views if they are to be considered properly neutral. And for centrist liberals looking to bolster the legitimacy and relevance of elite institutions, there has been a strategic element to adopting a welcoming posture as well: As long as Republicans are capable of winning elections, hosting a cadre of elite conservatives can help ensure that the Yales and Harvards aren’t perceived as narrowly sectarian. Elena Kagan, for example, herself a centrist liberal, hired the elite conservative Brett Kavanaugh as a lecturer when she was dean of Harvard Law School.
In recent years, however, centrist liberals have lost ground to a more assertive generation of legal leftists, who see elite conservatism’s commitment to neutral principles as illusory, and indeed as a mask concealing a defense of class hierarchy and racial subordination. Moreover, while the Democratic Party is increasingly rooted in constituencies that are denser and more diverse than the country as a whole, the Republican Party, the instrument through which the legal right gains power and influence over the judiciary and the administrative state, is rooted in regions that are whiter and more sprawling. The social identities of Democratic and Republican partisans are growing further apart, and the affluent, highly-educated enclaves that are so overrepresented in the legal elite have been moving sharply leftward, especially on questions of culture.
Further reading: “I got into Yale” isn’t a moral defense.
One result of these larger shifts is that the American right has grown more explicitly anti-elitist, a development that arguably culminated in Donald Trump’s 2016 triumph in the race for the Republican presidential nomination, and attacks from the right on the interrelated worlds of elite journalism and academia have intensified. This has made the position of centrist liberals in elite law schools uncomfortable in the extreme. Faced with leftists who reject the pretense of political neutrality and a mainstream right that feels alienated from and hostile towards a liberal elite they see as opposed to their way of life, their efforts to create room for elite conservatism are becoming untenable.
There is one force that continues to bolster embattled centrist liberals in their seemingly doomed defenses of pluralism: careerism. The nature of the American political system is such that there are many plum positions in the federal government that will be filled by Republican presidents and their judicial appointees. As long as appellate court clerkships are a route to prestige, there will be some pressure on the elite law schools to make nice with a select handful of right-of-center judges, and on students to at least entertain the idea of working for them. Though the number of students who secure the most desirable clerkships is small, they set the tone for a far larger number of aspiring lawyers.
Read Caleb Mason on why the Kavanaugh facts aren’t unknowable
Far more significant, though, is the fact that much of the new wealth that is being created in the United States is in the hands of investors and entrepreneurs committed to cosmopolitan liberalism, for whom a more populist and nationalist right represents a grave threat. I don’t doubt that students and faculty members at elite law schools are sincerely committed to leftist politics. Yet the often-strident social liberalism of Silicon Valley and other citadels of wealth helps ensure that the cost of embracing leftist politics, in professional opportunities and social opprobrium, is lower than it’s been in decades. One could argue that the cost of wearing traditionalist convictions on your sleeve is, in the uppermost strata of American society, certainly, heading in exactly the opposite direction. To be a Federalist Society stalwart at an elite institution today means something sharply different than it would have a decade ago.
So what does this all mean for the trajectory of America’s legal elite? I suspect the centrist liberals who continue to make the case for pluralism in a polarized political climate will be vanquished by their critics on the left, especially at the most elite of the elite law schools. Those belonging to the legal right, meanwhile, will have a choice to make. Some will assimilate by moving leftward themselves, or by engaging in self-censorship. Others will, perhaps, try to build up institutions of their own—an endeavor that, to my mind, is long overdue.
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