From an Anonymous TPM Reader …
Apologies for the extremely lengthy response, but your post today hit upon a perennial hobby horse of mine!
It strikes me that in addition to their own self-image, law professors (and elite lawyers generally) aren’t able to be honest brokers in discussions about court reform because of the enormous quid pro quo and tight knit social ties created by judicial clerkships. The number of students that obtain clerkships plays a big role in law school rankings. Partly as a result of this, having clerked at least for a circuit clerk is now seen as a de facto requirement to be hired as a law professor, barring a PhD in another field (and even then, most still clerk). Professors who clerk help place students with their judges and so on and so forth. There is an *enormous* professional taboo against quitting a clerkship or criticizing the judge that you worked for no matter how bad the experience. It’s viewed as professional suicide, some law schools will effectively ice you out of their career services as you do it, and certain firms will effectively be closed to you for the entirety of your career. Conversely, stay close with your judge and you can expect them to be a letter of rec and introduction-maker for life. All of this adds up to elite law school faculty and elite lawyers having a sizeable material professional and social stake in revering judges, in addition to their psychological investment in feeling learned.
The other issue with the deference to legal elites is that there’s a serious hack gap between liberals and conservatives. If you have bad grades but are willing to sign your name to a law review note saying that actually maybe women shouldn’t vote, there is an entire infrastructure that will spring into place to get you a clerkship. Taking that kind of an overt partisan stance is seen as an enormous plus on the conservative side, and clerkships then flow into academia and elite law firms. There is no equivalent professional reward for law students that are extremely politically liberal. Even the most liberal judges still largely select for grades and school prestige rather than partisanship, with their political leanings likely to be expressed by favoring people who want to work as public defenders or in legal aid (both of which are laudable but do not involve the same sort of raw will to power or desire to push forward foundational change that you see on the conservative side). This continues into academia and firms (and from there into judicial clerkships), where you simply do not see liberal people who are as equivalently anti-system as conservatives. The two sides are rewarding incredibly different things from the moment students enter law school in a way that kills in the cradle any chance of serious efforts to meet the moment coming from inside the legal academy.
And while it’s more tangential than the above point, I think it also shows the fundamental disconnect from the real world that liberal legal elites have: liberal judges and scholars retain an extreme disdain for trial lawyers/class action lawyers/mass tort lawyers, even as this group remains one of the single most reliable sources of fundraising for the democratic party (and from my experience, has been pro court reform for years). They’re happy to reap the benefits of democrats controlling congress, but don’t seem to understand how that actually happens.
