liberals strike back

In this week’s book forum, I asked Steve Teles if liberal legal academia had effectively responded to the conservative challenge. Here’s what Steve wrote:

On to Fabio’s next question. He asks, about the “impact on liberals and push back.” How did liberal legal academia respond to the CLM? Did it revitalize them? Did they launch new efforts? Is there a new liberal legal theory being pushed, one better than critical race theory?” I want to be very careful about his, since my research has been on the conservatives, not the organizations created in their wake. But I do have a couple of suggestive points.

The most important “counter-counter-mobilization” organization in this field is the American Constitution Society. ACS was created—no accident—in 2001, at the same time as a number of other organizations designed to respond to the “giant right wing conspiracy” that had by that point become quite an object of fear (and admiration) on the left. Large donors like George Soros and Bill Moyers(through the Schumann Foundation) opened up their wallets to fund ACS, Center for American progress, Media Matters for America, and others, most of which had specific analogues on the right (CAP with Heritage, ACS with the Federalist Society). In the case of CAP and Media Matters, my sense is that liberals picked up on the least significant part of the conservative infrastructure—its ability to influence the short-term news cycle.

The primary argument of my book is that the most important investments made by conservative donors were very long-term, like putting money into Henry Manne’s economics seminars for federal judges and professors, and investing in the Federalist Society. The grant officers who wrote the checks for these investments knew that they could take a decade or two to pay off. My sense is that this was not the time horizon that many of the liberal donors of the last decade have had (a point also made in Matt Bai’s book, The Argument). We can get into the details of this later, if there is reader interest.

ACS is a somewhat more complicated issue. From what I’ve learned from just a bit of nosing around, ACS in its early days was very much created as a parallel Federalist Society—the strategic idea was, basically, that the right had the Federalist Society, it seemed to have been really effective, to liberals needed one too. But the Federalist Society came to being when it did, and looked like it did, for very particular reasons. It started in law schools mainly because conservatives genuinely were on the outside in that context—they were “locally disempowered.” In the book I make some references to Bell’s disjuncture of realms—increasing conservative power in the polity did translate into increasing conservative power in the academy. So the Society’s base—and still, in my mind, it’s most important part—is in the law schools. Well, liberals are far from being outsiders in the legal academy, so creating a “safe space” can’t be the justification for having chapters in law schools. In addition, liberals are far from outsiders in the organized bar, which was one of the main reasons for the
creation of the Society’s lawyers chapters.

One of the things that I hear from a number of people who were involved in ACS in its early days is that liberals were impressed with the Society’s role in judicial selection and networking and wanted to create a counter-force on the left. But I think many of the people involved with ACS in the early days didn’t really understand the Federalist Society, in particular the fact that its networking
effect was a byproduct of something else, which was the intellectual debates the Society sponsors (and which are still its main activity). These debates are what bring people in the door, and the networking is a desired but not directly pursued side effect. What ACS really needed to do was create more intellectual ferment among liberal lawyers an law students, and the networking would come
about naturally. I think that the current leadership of ACS has come to realize this, in part because they’ve learned more about how the Federalist Society actually operates. So there’s some organizational learning going on here, which is something that org theory types are very interested in.

In terms of the development of new forms of liberal legal theory, there is some of this going on. People like Reva Siegel have been investigating the intersection of social movements and legal ideas, and “liberal originalists” like Jack Balkin have been injecting the idea that liberals should take seriously the text of the constitution. Much of what they have been doing is encouraging liberals to
operate at an intellectual level above the particular commitments of the various pieces of the liberal coalition. This, I think, is really what organizations like ACS need to focus on—being, to some degree, a challenge to the current structure of legal liberalism, which is very segmented and structured around particular areas of law and liberal interests. The challenge for ACS has been to avoid simply replicating that structure, which doesn’t really solve anything. Again, I think
they’ve gotten part of the way, but they are up against some very deeply embedded patterns both of thought and organization.

Written by fabiorojas

August 14, 2008 at 3:47 pm

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  1. […] sociology scholarship of the right; Steve Teles and I discuss his book on conservative lawyers here, here, here, and here; my post on Nixon’s […]


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