Justice For All
How to balance the bias in the legal profession.
Sep 29, 2008, Vol. 14, No. 03 • By CHARLOTTE ALLEN
The Rise of the Conservative Legal Movement, densely packed, meticulously annotated, and thus not exactly bedtime reading, chronicles in minute detail the long road from the Nixon to the current Bush era, along which an array of dedicated conservatives that included maverick law professors, entrepreneurial lawyers, and shrewd and farsighted funders at the now-defunct John M. Olin Foundation (which granted Teles free access to its archives for his research) and other right-of-center foundations, managed to cobble together enough of a network of key institutions, a legally conservative "new class" (as Teles calls it) in Washington and elsewhere not only to ensure that Republican judicial appointments were less of a crapshoot but to influence the courts themselves and the legal thinking behind their rulings.
The process is far from complete for, as Teles notes, conservatives have yet to displace the liberal legal network that currently dominates the courts, the law schools, and an oligarchy of public-interest law firms that comprises such left-leaning heavyweights as the American Civil Liberties Union, the NAACP Legal Defense Fund, the Mexican American Legal Defense and Educational Fund, and the Environmental Defense Fund. Nonetheless, the very fact that conservatives have managed to compete at all with the pluripotent and massively funded (thanks to the federal government and the Ford Foundation) liberal legal establishment is, in itself, a kind of miracle because, during the late 1960s and early '70s conservatives were largely locked out of the law schools' professoriate, nearly absent from the vast government legal bureaucracies (such as the Justice Department), and waning in influence even in such putatively neutral professional organizations as the American Bar Association.
The New Deal had attracted bright young legal liberals into government agencies, which in turn bloomed under expansive New Deal legislation, and by the 1960s those same liberals were staffing law school faculties and the judiciary. The latter institution not only fed the liberal beast ideologically by churning out court decisions supporting expansive views of both government power and hitherto undiscovered constitutional rights, but fed it financially by requiring the government to support liberal law firms and their lawyers via mandated attorney's fees. (Gideon v. Wainwright, the 1963 decision of the Warren Court ordering local governments to supply lawyers to indigent criminal defendants, set a precedent for taxpayer subsidies to the liberal bar.) With assured sources of income thus at hand, "public interest" law, aimed at setting public policy in courts rather than legislatures, burgeoned exponentially during the 1960s and '70s at the hands of liberal lawyers.
As law professors, those same liberals (or their academically inclined soul brothers) fed their ideas to a fashionably radical crop of '60s/'70s law students, and those students eventually came to staff not only the public-interest firms but private law firms as well, where they donated their services in pro bono work for liberal causes and began climbing the ranks of the influential bar associations. The ABA's split vote in 1987 to deny Reagan's Supreme Court appointee Robert Bork a "well qualified" rating, despite his distinguished career as a federal appellate judge and Yale law professor (a vote that helped sink his Senate confirmation), showed how thoroughly the left had marched through traditional legal institutions.
As the Nixon and Reagan presidential victories indicated, the right had plenty of grassroots support but was nearly powerless in the increasingly powerful court system, a system in which elites count. Teles chronicles the right's only partially successful efforts to gain a foothold in a generally hostile legal establishment. He focuses on two of those efforts: the creation of conservative public-interest law firms aimed at rolling back liberal victories in the courts, and moves to change the culture of the law schools, by way of conservative networks such as the Federalist Society, founded in 1982, and the "law and economics" movement among free market-inclined law professors that cast a critical eye on the monetary and social costs of expansive legal doctrines. The conservative public interest firms sought to change the direction of judicial rulings, while the law and economics movement sought to change the nature of the legal thinking that has churned out generations of liberals in the bar and on the bench.