Tipping Back the Scales

How Obama can reverse justice’s long slow slide to the right.

By Rachel Morris

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I n 2003, a thirty-two-year-old lawyer named Bradley Schlozman became deputy assistant attorney general of the Civil Rights Division of the Department of Justice. He wasn’t very popular—career lawyers called him "The Schloz" behind his back. But that didn’t matter, because Schlozman was their boss, and he didn’t like them either. Voting rights attorneys were "mold spores," he complained to an associate. "My tentative plans are to gerrymander all of those crazy libs right out of the section." What he wanted instead was to recruit some "good Americans."

So Schlozman took control of the hiring process, screening all of the applications for career positions. Senior managers in the department soon spotted a pattern in the resumes he selected. His candidates were often poorly qualified—one was only a paralegal—but they were affiliated with conservative groups like the Federalist Society, the Heritage Foundation, or the Republican National Lawyers Association. In fact, one senior lawyer wondered whether Schlozman knew that it was illegal to hire or fire career lawyers for political reasons—he kept appending applications with chirpy notes like: "this has lib written all over it. let’s discuss," or, "just spoke with [the attorney] to verify his political leanings and it is clear he is a member of the team." In particular, Schlozman frowned on candidates who had experience with civil rights organizations. "When we start asking about what is your commitment to civil rights … how do you prove that? Usually by membership in some crazy liberal organization or by some participation in some crazy cause," Schlozman explained to a senior staffer in a voicemail message. "I just want to make sure we don’t start confining ourselves to, you know, Politburo members because they happen to be a member of some, you know, psychopathic left-wing organization designed to overthrow the government."

Schlozman’s influence wasn’t confined to personnel—it infected policy, too. The division vets election legislation to make sure that it complies with the Voting Rights Act, and Schlozman approved a Georgia voter identification law and Tom DeLay’s redistricting plan for Texas over the objections of career staff. Both plans benefited Republicans at the polls, but (as courts later found) they illegally disadvantaged minority voters. Morale in the division plummeted, and in 2005, nearly 20 percent of the career staffers left. The following year Schlozman moved on as well, to become a U.S. attorney in Missouri. He wrote to a friend that he missed "bitchslapping" the voting rights attorneys, but he was proud of what he’d accomplished in Washington. An investigation by the Justice Department’s inspector general later found that Schlozman had violated civil service laws, and that sixty-three of the ninety-nine attorneys he played a part in employing were known to be Republicans or conservatives.

Schlozman’s ham-fisted quest to pack the Justice Department with Bush loyalists was the crass echo of a project that began nearly twenty-five years ago. When Edwin Meese became attorney general in 1985, he aimed to change America’s legal culture so that Ronald Reagan’s agenda would thrive long after he left the White House. Meese turned the Justice Department into an ideological patronage machine, providing a generation of young conservative lawyers with the government credentials and intellectual tools they would need to transform American jurisprudence.

The cronyism and ineptitude that pervaded the Justice Department in the past eight years may have dealt this project a mortal blow—thanks to the Schloz, a stint in the Bush DOJ will probably not be considered a stepping stone to greater things. But even if the conservative legal movement advances no further, its successes will reverberate for years to come. Republican appointees now comprise more than 60 percent of appeals court judges, with majorities on ten of the thirteen appellate courts, while Democratic appointees control just one. Many of these Republican appointees are not moderates or pragmatists, but talented, unbendable conservatives. A study by the law professor (and now Office of Management and Budget official) Cass Sunstein found that the judges appointed by Republican presidents from Reagan onward were more consistently conservative in their rulings than those appointed by Eisenhower, Nixon, or Ford. Already the Supreme Court has lurched to the right since the arrival of John Roberts and Samuel Alito, both Reagan DOJ alumni.

Since Barack Obama won the election, many have wondered what he will do to repair the damage that Schlozman and his allies inflicted on the DOJ’s integrity. But there is another important question to be asked. Meese’s inventive use of the Justice Department ultimately set American jurisprudence on a rightward course. Could Obama use his Justice Department to turn it back?


T he story of how conservative lawyers extracted themselves from the wilderness is often cast as a sinister tale, as if the Federalist Society were an affiliate of the hooded and robed cabal that Tom Cruise infiltrates in Eyes Wide Shut. Steven Teles, a political scientist at Johns Hopkins University and a fellow at the New America Foundation, offers a more rational take in The Rise of the Conservative Legal Movement, and in a new article in Studies in American Political Development. However, with Alberto Gonzales’s blank stare lingering in the mind’s eye, Teles’s assessment still sounds quite outlandish: he suggests that the real secret of the movement’s success was its thirst for ideas and intellectual debate.

The story begins in the 1970s, with conservatives incensed by the dramatic changes wrought by Earl Warren’s Supreme Court: a stronger federal government, school busing, Miranda warnings, and the concept of a right to privacy. Nixon’s election was supposed to end the primacy of these "activist judges," but on that count, his Supreme Court appointments failed miserably. Harry Blackmun drifted so far left that he wrote the majority opinion in Roe v. Wade; and in the end Warren Burger’s Court only continued what Earl Warren had started. At around the same time, the governor of California, Ronald Reagan, was developing an intense antipathy for the liberal legal groups that persistently challenged his welfare reforms with almost no conservative opposition. Republicans realized that their electoral victories were hollow if they could not protect their policies in the courts.

There was no quick fix for this predicament. In the early decades of the twentieth century, the legal establishment had been a bastion of WASPish Republicans. But then the New Deal created a generation of liberal government attorneys who spilled into the upper echelons of private practice and prestigious law schools. Over the next twenty years, they transformed the character of the legal profession. By the 1970s, conservatives were a minority presence in the elite legal institutions that fed government and the judiciary and the public interest law firms. The culture of the top law schools was decidedly liberal. When the Nixon administration tried to "defund the left" by stripping public interest law firms of their tax-deductible status, the American Bar Association rallied its forces to defeat the plan.

Conservatives tried to form their own public interest law firms to combat the likes of the American Civil Liberties Union, but that didn’t work very well. In 1979, a lawyer named Michael Horowitz explained why, in an influential report for the Scaife Foundation. Conservative lawyers, Horowitz observed, lacked a coherent legal philosophy to match the liberal conception of rights. By casting their positions as part of an American struggle for social justice, liberals were operating on a "higher moral plane." This won them sympathy from the press and a steady supply of gifted, idealistic attorneys. "Nobody has sufficiently offered young lawyers the sense that one can be caring, moral, intellectual, appropriately ideological, while at the same time being radically opposed to the stale views of the left," Horowitz wrote. The law was a battle of ideas, he concluded, and until conservatives acquired better conceptual weapons, liberals would continue to win.


B y the time Reagan won the presidency, legal conservatives hadn’t fixed their personnel problem. Department of Justice officials had no shortage of recommendations for the undistinguished son of a Republican donor, but they wanted exceptional lawyers dedicated to Reagan’s agenda. However, because conservative legal institutions were so weak, senior officials didn’t know where to find the right people. They also needed a better way to identify ideologically reliable judges: one former DOJ official admitted to Teles that he used to pick nominees at random from a newspaper ad listing "Law Professors and Deans for Reagan/Bush."

Then, in 1982, a group of students at several prominent law schools founded the Federalist Society, intending to create a forum where conservatives could discuss the concepts they felt were absent from their classes. As an early funding request explained, the group hoped to help conservatives "present their ideas more articulately and more vocally … perhaps ultimately, to question some of the liberal positions which are being presented as the law." Members invited prominent conservative legal scholars to speak, but they also hosted debates with liberal professors, so they could test and refine their ideas.

The society quickly attracted the attention of Reagan officials like Horowitz, then a general counsel in the Office of Management and Budget, who realized that it might be the answer to the problems he had identified in his report. He helped the society arrange guest speakers from the administration, connected students with government officials with responsibility for hiring, and notified conservative philanthropists that this was a project worth supporting. The recognition from the Reagan administration instantly swelled the society’s prestige. It added chapters for lawyers, and became a powerful venue for legal conservatives to connect with each other.

However, it was only when Edwin Meese became attorney general in 1985 that things really began to change. Reagan’s first attorney general, William French Smith, had mostly focused on the department’s day-to-day activities. Meese, by contrast, was a movement man, determined to invest in the future. He brought in a cadre of loyal and experienced senior staffers, and directed them to recruit smart, young, conservative lawyers in order to set them on the path to the judiciary or higher office. Thanks to the Federalist Society, his officials now had a one-stop shop for promising candidates, and they hired many of its members. When they found lawyers with senior leadership potential who lacked previous government experience, they brought them on as special assistants or advisers so that in a few years they could be assistant attorneys general. In the short term, this helped Meese gain control of the bureaucracy, but he was also planting seeds for the years ahead. One of the many lawyers he cultivated was Samuel Alito. Meese promoted the thirty-five-year-old to deputy assistant attorney general in 1985, after Alito impressed him with his work on a strategy to eviscerate Roe.

Meese’s second innovation was ideological. He wanted to keep his young staffers motivated, and create the intellectual conditions in which conservatism could thrive. His DOJ held regular seminars and lunchtime discussions—John Roberts, then at the White House Counsel’s office, also attended these gatherings. Meese asked a group of department lawyers to craft detailed constitutional arguments for the movement’s legal agenda, which remains the same today: outlawing abortion, ending affirmative action, protecting the death penalty, restricting government regulation, and expanding presidential power.

In particular, Meese was determined to elevate the status of originalism, the notion that the Constitution should be understood as its authors wrote it. Championed by the Yale law professor Robert Bork, originalism enjoyed a small academic following, but Meese believed it could provide the intellectual fuel for Reagan’s goals. On the surface, it sounded nonpartisan, and there was something deceptively intuitive about it: surely judges are supposed to confine themselves to the strict meaning of the constitutional text. However, originalists tended to be selective about the norms they invoked from the Founders, and their selections usually overlapped with conservative goals—prohibiting abortion, or returning to an era of a smaller federal government. (Antonin Scalia, for instance, defends the death penalty on the grounds that it was clearly acceptable when the Constitution was written, yet he admits that it is not okay to flog people, a punishment also tolerated at the time. He also says that he would have signed on to Brown v. Board of Education, although there is no originalist way to reach it.)

Meese saw that originalism could do more than just rationalize conservative policy positions. It provided a justification for overturning decisions that conservatives didn’t like, because the Constitution, not accumulated precedent, was meant to be the judge’s only guide. Most important, it represented a direct assault on the "Living Constitution"—the idea that the Constitution should be interpreted according to the evolving values of the times—which underpinned the major liberal victories of the Warren Court.

In 1985, Meese made his case in several high-profile speeches, charging that to venture beyond the letter of the Constitution was to engage in "chameleon jurisprudence." The Supreme Court’s senior liberal justice, William Brennan, took the bait, retorting that original intent was merely "facile historicism" with "political underpinnings." He couldn’t have done Meese a bigger favor. Suddenly, originalism was not a fringe ideology, but a concept worthy of discussion by a Supreme Court justice. The exchange sparked debates in the major law journals and coverage in the press, and ultimately paid off in ways that Meese hadn’t intended. Not only did he move originalism into the mainstream of elite academic debate, he transformed the popular understanding of what it meant to be a judge. "Meese was successful in making it look like he and his disciples were carrying out the intentions of the great Founders, where the liberals were making it up as they went along," the Harvard law professor Laurence Tribe told the New York Times. "It was a convenient dichotomy, very misleading, with a powerful public relations effect."

Thanks to the foundations that Meese laid, the conservative legal movement made its influence felt even when Republicans were out of power. During the Clinton years, Ted Olsen and Kenneth Starr (both Federalist Society members whose careers were advanced by Reagan’s DOJ) grabbed the spotlight with their crusade to impeach the president. However, the movement won another, more enduring victory during this period, by significantly constraining the types of liberal judges Bill Clinton could appoint. Continuing the public conversation that Meese started, conservative lawyers outside the government painted many of Clinton’s nominees as liberal extremists who were unfit for the courts. Federalist Society lawyers on the Republican staff of the Senate Judiciary threw procedural obstacles in the way. In the end, they blocked votes on more than sixty of Clinton’s nominees to the federal courts (one was Elena Kagan, the new solicitor general), and ensured that his Supreme Court appointments were moderates.

With the election of George W. Bush, Meese’s efforts came to full fruition. Bush had a choice of solid conservative judicial nominees for the federal courts with unassailable qualifications in government or the lower courts. Outside the administration, the conservative legal network lobbied the White House and Senate for their preferred candidates; they mobilized more than thirty lawyers to promote their vision of a Supreme Court justice on television. When Bush nominated his White House counsel, Harriet Miers, to the Supreme Court, legal conservatives were alarmed by her lackluster credentials and spotty grasp of constitutional law. They joined forces with Christian conservatives and had her replaced with Samuel Alito, whose intellect and ideological orientation were never in doubt.

Under the guise of restraint, this new generation of conservative judges has wrought dramatic changes. On the appeals courts, conservative majorities have applied the death penalty aggressively, weighed heavily on the side of prosecutors in criminal cases, and constricted the individual’s ability to sue or appeal by rejecting an increasing number of cases on technicalities. Roberts and Alito sailed through their confirmation hearings by presenting themselves as cautious technicians, mindful of the decisions made by jurists before them. But once they reached the Supreme Court, they were not as respectful of precedent as they had claimed. In the first full term that they served together, the Court narrowed the right to abortion, restricted free speech for students, and struck down plans to encourage racial integration in schools, leaving Justice Stephen Breyer to lament, "It is not often in the law that so few have so quickly changed so much."


W hat can Democrats learn from this? Teles observes that legal conservatives failed when they merely mimicked liberals; they had to develop strategies that fit their own circumstances. So just as conservative public interest law firms floundered in the absence of an intellectual infrastructure, liberals probably won’t gain much from their efforts to imitate the Federalist Society unless they tackle their underlying vulnerabilities. A lack of networking opportunities or raw talent isn’t one of them: the culture of elite law schools remains liberal, if less uniformly so, and plenty of bright liberal lawyers gravitate toward public service.

But liberals are in a weaker position when it comes to the courts, and not just because they’re outnumbered. Over the past thirty years, Republican appointees have become more conservative, while Democratic appointees have become more moderate. This isn’t a simple matter of which party controls the Senate—Republicans needed Democratic senators to confirm Roberts and Alito. Rather, it reflects the fact that liberals have lost the upper hand in defining the qualities that make a good judge. The concept of the Living Constitution has been badly hammered, while other liberal ideas about judicial interpretation are confined to the academy. Justice Breyer has attempted to fashion a liberal counterweight to originalism—he calls it "Active Liberty"—but the concept is so convoluted that it’s hard to see it catching on. And so even when Democrats are in power, Republicans have successfully painted Democrats’ preferred nominees as too extreme or freewheeling, while presenting their own ideal nominees as modest guardians of the Constitution. This won’t change until liberals find a way to talk about judges that counters the potent political appeal of originalism.

Obama and his attorney general, Eric Holder, are pragmatists by philosophy and by temperament, and they’re unlikely to use the Justice Department as an ideological think tank. This is a good thing, because the Bush administration badly damaged the integrity of the DOJ, which, in any case, shouldn’t be responsible for doing either party’s intellectual homework. However, one way that Democrats might solve their problem is to appoint better communicators to the courts—judges who, like Robert Jackson or William Brennan, are capable of connecting complex legal concepts to moral principles that Americans understand. As it happens, Obama has expressed similar thoughts, and there are a few things his Justice Department could do to ensure that his preferred nominees actually make it to the bench.

Whenever Obama has been asked about Supreme Court appointments, he has talked about finding a gifted legal thinker who also has "life experience"—not just "academics or people who’ve been in the court." Last year, he expanded on his thinking to CNN’s Wolf Blitzer:

What you’re looking for is somebody who is going to apply the law where it’s clear. Now, there’s going to be those five percent of cases or one percent of cases where the law isn’t clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. And, in those circumstances, what I do want is a judge who’s sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power, and as a consequence can’t protect themselves from being dealt with sometimes unfairly, that the courts become a refuge for justice. That’s been its historic role.

Obama’s criteria is more substantive than it sounds, because experience and personality are fundamental influences on a judge’s work. Richard Posner, appointed by Reagan to the Seventh Circuit Court of Appeals, explores this idea in How Judges Think, a refreshingly honest disquisition on judicial decisionmaking. He stresses that there is no such thing as the judge-as-baseball-umpire who simply calls balls and strikes, as John Roberts disingenuously suggested in his confirmation hearing. Laws as written are not always clear (sometimes squabbling lawmakers leave them intentionally vague), and even when they are, judges must navigate competing facts. There are always questions for which the law won’t provide a pat answer. In making these judgments, Posner writes, the formative impressions of a judge’s previous life experiences kick in. "Was he a prosecutor before he became a judge? A defense lawyer? What experiences has he or members of his family or friends had with police or prosecutors, or for that matter with criminals?" Posner cites a raft of empirical studies indicating that while political affiliation alone is an unreliable predictor of judicial behavior, political party plus background plus work history is far more revealing.

Personality and temperament, too, are more significant than most judges care to admit. In fact, Posner suggests, a judge’s character often attracts them to a particular legal philosophy in the first place. A more "authoritarian" type of personality, which prizes order and hates ambiguity, tends to favor strict rules of interpretation and literalist readings of the law over flexible tests and standards. Judges who are uncommonly happy or angry are apt to decide cases quickly on the basis of fixed ideas. Eisenhower rued his appointment of Earl Warren as the "biggest damned-fool mistake I ever made," but the signs that Warren might make a turn to the left were there all along, in his reputation as a flexible politician with a knack for coalition building and a lifelong affinity for "the little fellow." Anxious, diligent Harry Blackmun spent hours in the law library agonizing over his decisions, an odyssey of questioning that eventually led him to become the improbable author of Roe.

Obama’s desire for empathy and experience in his judges doesn’t sound explicitly political. But it could produce a bolder jurist than, say, the self-avowedly cautious Ruth Bader Ginsburg, or a more effective communicator than the scholarly Stephen Breyer. It could also pay off even if Obama only gets the opportunity to replace liberal Supreme Court justices, as seems likely. In some instances, this type of judge may decide cases differently: someone who is intimately attuned to the struggles of ordinary people would surely bring a distinctive perspective to business cases, where Ginsburg and Breyer have regularly joined forces with conservative justices to form the most corporate-friendly Court in recent times. In other instances, they may vote the same way as any liberal judge—here, abortion comes to mind—but do a better job of translating their legal reasoning into terms capable of winning popular support. The beauty of Obama’s approach is that his nominees don’t need to be overly liberal at confirmation time. Earl Warren, after all, was a moderate Republican. But he was also the son of an immigrant railroad worker who used to quip that he was too poor to give his child a middle name. In the end, Warren’s famed sense of fairness was the magnet that pulled his thinking to the left.

If Obama is serious about his vision of a judge, he’ll take a tip from Meese, and lay the groundwork early. Since 1975, broad experience has become increasingly scarce on the high court. Today, every justice is a former appeals court judge, and many spent significant time before that as law professors or corporate attorneys. (In 1950, only one justice was a former appellate judge.) And for the most part, the stars of the liberal legal establishment have strikingly similar resumes: Ivy League schools, clerkship for a federal judge, followed by a top law firm job or a prestigious teaching position. This isn’t to say that they aren’t eminently qualified, or that Breyer or Ginsburg aren’t good judges. But if liberals choose all of their jurists from the same mold, their ideas about the law retreat into rarefied places.

To broaden his options, and the options of future Democratic presidents, Obama might find some brilliant lawyers from outside that realm, and enhance their resumes with a nomination to a federal court, or a stint at the Department of Justice. (This doesn’t mean imposing Schlozman-style criteria on career positions, but the political roles should certainly be fair game.) How about one of the military lawyers who fought against the Bush administration’s torture policy? Or a local politician like the mayor of Newark, Cory Booker, a Rhodes scholar who ran legal clinics for the poor while at Yale Law School?

Finally, like Meese, the Obama administration must make a public case for its model of a judge long before the first Supreme Court nomination comes along. This means major speeches, preferably by Obama, that reach beyond a lawyerly audience. The American Constitution Society, which styles itself as the liberal answer to the Federalist Society, might get members to advance the argument in the popular media, although they may need to pick a few fights if they’re to gain any traction. If Obama truly hopes to bring a judge to the Court who understands how the law affects the lives of average citizens, he will have to persuade the public that this is a legitimate and desirable quality in the third branch of government.

In all of this, Obama has a rare responsibility. He has the expertise to think about the Supreme Court in sophisticated terms, and the communication skills to move the country past the cartoonish ideas that have historically dominated debates about judges. He has also been handed a political moment that is surely ripe for the argument that our most powerful institutions should be more responsive to the well-being of ordinary Americans. Obama will have to do more than simply settle for a safe choice when the going gets tough. Otherwise, the change that he seeks will have little chance to take root.


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Rachel Morris is a contributing editor of the Washington Monthly.  
 
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