Do Conservative Lawyers Know What Time it Is?
It is time for conservative lawyers to roll up their sleeves and join the fray.
In a fascinating recent podcast conversation with Saurabh Sharma of American Moment, conservative lawyer Theo Wold discussed whether the conservative legal movement has been a success or failure. One of the failures—or at least dangers—that Wold, who served in the Trump administration as acting assistant attorney general in the Office of Legal Policy at the Department of Justice and deputy assistant to the president for domestic policy, correctly pointed out is the overwhelming desire of young conservative lawyers to become judges.
It is an understandable desire. Conservative judges are an asset to our republic, and a lifetime appointment to the federal bench is a solid career aspiration. But when wave after wave of the most talented young conservatives go to law school and become immersed in elite conservative legal circles, then the tendency to avoid too much controversy, to stay out of politics and policy, and to focus on neutrally “getting law the right” spreads.
This is the enticing path to a well credentialed, uncontroversial resume—the path to the black robe and a lifetime seat on the bench. But Wold is right. I see two particular dangers to conservative lawyers aspiring to the bench and avoiding controversial political work.
First, the habit of laying low creates lawyers who have lost the drive and habit to do boldly conservative things. Let us assume the motive is pure: a young law student is full of good, conservative zeal, and desires to become a judge in order to be a bold conservative voice on the bench. Can that ambition survive a decade or two of “laying low,” of practicing being uncontroversial?
Our actions become habits. If someone spends years in the legal profession studiously avoiding controversial works, writings, and statements, one develops the habit of avoiding controversy. There is a legitimate fear that that person, once so ambitious to be a conservative judge, has spent so long being uncontroversial in the effort to become a judge that he no longer has what it takes to eschew public opinion and make the hard decisions a good judge must make.
Second, this ambition for the bench creates a real dearth of elite conservative lawyers to do much-needed work in the public square. We need bold, talented young conservative lawyers in many roles. We need them producing good scholarship. We need them working as counsel for senators and executive agencies. We need them litigating on the front lines in the areas of immigration, abortion, and religious liberty.
Think about the chilling effect it will have if many conservative lawyers have their eyes on higher offices, which are much easier to obtain if one possesses an elite, uncontroversial resume. Why would the most talented young lawyers, with their eyes raised to the bench, ever look to the work of writing about, counseling on, and litigating the most controversial issues of the day? One wrong article, one unwoke representation of a client, could be what comes back to sink their judicial nominations one day.
Trust me, I understand the inclination to hesitate before getting into the fray. And I understand the ambition to be appointed a federal judge. The thought of putting one’s legal and academic ambitions to use from the bench—deciding cases, preventing bad lawsuits, creating good precedent that could have national consequences—is quite attractive. And a judgeship provides a good, comfortable salary with life tenure.
A couple months back, I had breakfast with a retired judge and a county political chairman. They were looking for candidates to run for a couple county offices, including a trial judge position likely to open up before next year’s election. Clearly, I had been vetted and considered a bit, because the retired judge told me he had been reading my essays here at The American Conservative. He said my work was impressive and that he agreed with much of my legal and political commentary. But he made it a point to note that my published positions may be used to label me a conservative extremist in my legal views (true enough), which could be a liability in an election in our purple county.
I tend to agree with his assessment. But to use a now cliché catchphrase from the online right, conservative lawyers (and law students—start thinking now!) need to ask themselves: “What time is it?”
Do we live in a society that has trended liberal, but will naturally swing back to the middle in due time? Or does our current society look more like a late republic, ready to fall if good men don’t take action? If the former, then it is probably reasonable for many young lawyers to avoid publishing controversial writings and taking political jobs; they can “lay low,” and aspire to do good from the bench later on. But if we are indeed living in times in which our society is on the brink of disaster and collapse, it is no good for conservative lawyers to lay low for years or decades in the hope of some future good work.
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To be fair, it is not pure judicial ambition that keeps people out of the fray. I am a husband and father; we are expecting our fourth child in a few months. My first calling and duty is to lead and provide for my family. It is difficult to do that when one has been canceled in the public square and can’t earn a living in his professional field. But while we need to take care to be providers for our families, fear of being canceled can be an exaggerated fear. Decent lawyers might find certain avenues blocked due to their political work, but are unlikely to be completely canceled and out of work.
Even if there are legitimate risks and consequences to weigh, we have to ask the question: conservative lawyers, what time is it? Are we living in a nation that is simply going through a revolutionary stage but will shift back to normal? Or are we in a late republic, with every traditional institution crumbling and very little separating us from the collapse of the nation we love?
If the honest answer is the latter, and I think for many readers of this publication it probably is, then you know what time it is—and isn’t. It is not time to keep out of every controversial issue with the hope of remaining unspotted, still qualified for a dream job some decades down the road. There are hard times upon us, hard battles to be fought. It is time for conservative lawyers to roll up their sleeves and join the fray.