Several of you have asked me to say more about the method used to generate the sample of lawyers interviewed for my book, "Lawyers of the Right." Jack Heinz, Anthony Paik, and I relied primarily on the “issue-events” method to identify the organizations and lawyers for our study – that is, we selected seventeen legislative controversies involving issues that were important to different conservative constituencies in the late 1990s. The events included proposals regarding abortion, affirmative action, school prayer, tort reform, environmental policy, gay rights, civil rights, flag burning, funding for the National Endowment for the Arts, the minimum wage, compulsory union dues, property rights, gun control, criminal procedure, funding for the Legal Services Corporation, and cultural assimilation for immigrants. We then searched on-line archives for articles about these legislative controversies in eighteen newspapers and magazines, and we identified all non-governmental, nonprofit organizations that appeared in these articles on the “conservative” side of the issues. This method produced the names of 81 organizations. We searched a variety of sources — including organization websites, board lists, litigation records, and a database of legislative testimony — to identify lawyers who worked for these organizations as officers, litigators, board members, lobbyists, and senior scholars.
To compensate for the issue-events method's possible bias against litigation and research groups, we supplemented the list with five additional organizations that were particularly active in those policy arenas, using to two directories of conservative organizations: The Conservative Directory published by RightGuide.com, and the Heritage Foundation's list of “U.S. Policy Organizations” (Wagner et al. 2000: 681-789).
I requested interviews with 98 lawyers for the 86 organizations, and I interviewed 72 of them. (The 26 lawyers I attempted to contact but did not interview included seven who did not respond and three who had moved to other jobs. Scheduling problems (theirs and mine) prevented me from interviewing 16 lawyers who appeared willing to meet with me.)
In my last post, I noted that, in my set of interviewed lawyers, advocates for libertarian and mediator organizations were much more likely than social conservatives or business advocates to be active in the Federalist Society. My sample size is small, of course, but the trends were very strong: 82 percent of the libertarian and affirmative action opponents were active in the Federalist Society, and all of the lawyers for mediator groups said that they participated. In contrast, just over one quarter of the advocates for social conservative organizations and the same percentage of advocates for business groups were active in the Federalist Society. Perhaps these skewed results reflect the prominence of the interviewed lawyers; in the larger population of advocates for conservative and libertarian causes, the various constituencies might be more evenly represented. But maybe my numbers really do reflect broader trends in the Federalist Society’s reach and membership. As I noted previously, many prominent social conservative advocates do not work in major metropolitan areas, which would make it difficult for them to be active in Federalist Society events. It may also be that those lawyers see less value in the meetings and debates. In the book, I speculate about other possible explanations as well, but I really don’t know the answer.
I have one (surely naïve) parting question for readers. Why aren’t there more (any?) truly bipartisan mediator organizations? If the Heritage Foundation, Federalist Society, and other mediator groups that I’ve mentioned in previous posts use various strategies (including indirect ones) to build bridges within the conservative coalition and mobilize support behind the GOP, where are the organizations that might help promote consensus across political lines on the most important public policy challenges of our time?
Related Posts (on one page):
- The sample, and more about mediator groups:
- Lawyer Networks:
- Divided Constituencies and Their Lawyers:
- Lawyers of the Right:
- Prof. Ann Southworth Guest-Blogging This Week:
The most obvious candidate for a truly bipartisan organization of lawyers would be the ABA. Alas, it has been captured by the left. In my field, criminal law, the ABA invariably takes the defense bar's side against the prosecution whenever it takes a stand and those two segments have clearly opposing positions.*
So the question is, why do the members of an organization such as the ABA tolerate its becoming a tool of one side and thereby tarnishing the image it once had? For the partisans, even a diminished puppet on their hand is better than an organization that is not a puppet. But I would think a majority would not be so partisan and would rather have an organization that is respected on both sides of the aisle. Regrettably, if that is the view of the majority, they have not done what it takes to accomplish that.
Perhaps the answer to Prof. Southworth's question and my rephrasing is that the people with the drive to organize or to take over organizations are partisans not really interested in bipartisanship.
* Last term, for the first time in decades, the ABA filed a Supreme Court amicus brief in support of the prosecution in Indiana v. Edwards, regarding self-representation by borderline mental competents. However, in this unusual case the defense bar was not aligned with the defendant.
I don't see criminal justice as a straight left-right issue which complicates the situation a fair bit. In order for an organization to take any positions it would of nessecity have to discard other positions. I could see a process where the initial position is tolerabel to almost everyone in the group but some marginal number leave. This makes it easier for the next position to be just a little less tolerable and so on until the originally open group has been captured.
I have a hard time seeing a group that undertakes advocacy not getting captured eventually. I believe this is in fact why the FedSoc does not undertake advocacy.
That is a true pearl of wisdom.
Basically there is relatively little area for compromise and if your own coalition can't reach consensus, then efforts to appease the other side are only going to blow up your own coalition.
Personally, I am not persuaded that there are more things that have to be done by government that are somehow disabled by legislative gridlock such that compromise is essential (I suppose I could be persuaded that there are things that have to be undone, but I am inherently suspicious of "consensus" to achieve that. I think you have to win arguments not give them up.)
That said, the Federalist Society has done more to present coherent respectful argumentation between the left and right and has vastly enlightened my understanding of some codecils of leftist thinking. Some of these have resulted not so much in consensus, but in an understanding of the perspective and integrity of advocates from the left (that is not a universal characterization but is a phenomenon I have experienced many times.) I would not ignore these functions of the right leaning mediators. You don't see it oft echoed on the left - although they occasionally try. (Campus Progress did a halfway decent debate at Brown regarding the merits of John Bolton's appointment as Ambassador to the UN, hosting Ruth Wedgwood as an exponent of his confirmation.)
And there are the type of organizations of which you speak but they tend to have a more highly elite quality, e.g. Council on Foreign Relations, Brookings Institute (left leaning at the moment but sort of centrist, but that can be almost the absence of principle as much as an accord on principle.), The Chamber of Commerce is viewed by the right as a centrist organization on many issues.
I could go on but I think you'll get some response to this so I'll shut up for once.
Thanks for the thread of comment you have provided.
Brian
Joke. In the US there is no left left. There was barely any ever. Use of the word in the US context signifies nothing but dogmatic extremism and blind political adherence.
The ABA hasn't strayed from a stance that defends the law's autonomy, its intellectual rigour and its ability to address individual circumstance against legislatures and administrations that diminish its role by competing with clumsy broad brushes to more abjectly pander to ignorant populism. It is the aggressive turf war waged by legislatures and administrations (co-opted prosectors included) that has strained collegiality within the law to breaking point.
OLC opinions and other capitulations within the DoJ during the last administration also instance the law ceding institutional ground to the executive, whatever one thinks of that executive's politics. The ABA has every right to deplore this process - on an utterly apolitical basis.
When you consider the list of issues, line them up with the conservative viewpoint on one side, and the libertarian viewpoint on the other. Here's what I see:
abortion,
affirmative action,
school prayer,
tort reform,
environmental policy,
gay rights,
civil rights,
flag burning,
funding for the National Endowment for the Arts,
the minimum wage,
compulsory union dues,
property rights,
gun control,
criminal procedure,
funding for the Legal Services Corporation,
cultural assimilation for immigrants.
According to most or many of the commentators here, they are against abortion, affirmative action, environmentalism (how many times has this been called a hoax here?) gay rights (at least when it comes to gay marriage), flag burning, funding for any gov't agency ( which presumably would include LSC and NEA), minimum wage, union dues, and gun control. On the other hand, they are for tort reform, property rights and cultural assimilation for immigrants.
In fact, the only issue that I see disagreement with would be flag burning, which is probably the least consequential of all the named issues. School prayer probably cuts down the middle, but we haven't seen much discussion on it. We have seem many people, however, complain about evolution and would rather promote creationism in the schools, so I would presume that school prayer probably gets quite a bit of support from libertarians who post here.
So, I guess one starting point is this: How do you define a libertarian differently from a conservative? What actual policy differences are there? If I'm right, there is almost no difference at all. which means that I have to find a new word to define people who actually value freedom.
Unless, of course, someone decides to equate deviancy with perversion, but I certainly wouldn't do that!
Looking at your list, from what I've seen here is what I would say.
Abortion is very much split among te libertarians I know.
Gay rights I would say the issue is more that the preferred answer is removing marriage entirely from government perview, rather than adding another group to existing marriage..
The VC certainly has a huge population of folks unhappy with the current state of criminal law. Yet coupled with a desire for stronger protections for the not yet adjudicated guilty, there is also a strong streak of punish the convicted.
I have seen next to no support for school prayer, though plenty of suppport for allowing students to pra, including during speeches they give. The libertarian opposition is to the government sponsorship of the message.. No support for criminalizing flag burning either.
One you missed is drug policy where the typical libertarian is very much in favor of some form of legalization.
Other things you mention such as the NEA, the end result might be the same but the road is very different. Libertarians would be unhappy no matter what the program produces. The more general conservative is unhappy with the NEA because of what is produces, but if there were restrictions they wouldn't be so opposed.
I hope this helps shed some light on tese issues.
That last post of mine features horrible spelling. I hope people are able to make sense of it.
And those are the better excuses. Most people against gay marriage merely use the standard talking point of this religious and conservative right wing.
Although I agree there is no support for mandated school prayer, again, I am saddended to see such ignorance that so-called libertarians believe that evolution is some sort of hoax, and that creationism is just as valid, if not better.
You must meet an entirely different breed of libertarian than I have. I don't believe I've ever met a strongly religious libertarian. Which is not to say libertarians wouldn't support strongly religious people under some circumstances.
The Arizona photographer who was punished for refusing to provide service to a lesbian commitment ceremony is a great example of that situation.
Libertarians support legal private discrimination on the basis of freedom of contract or association grounds, not because they think they are good policies for a business to adopt. People should be free to make poor choices.
I've certainly never met a libertarian who the addition of strongly religious materials to science courses, though again that material might be entirely appropriate in some other class.
Again, I'm confused about the selection criteria and what they actually show. Defining terms is critical. I'm not sure that I understand how you removed bias from your selection process. Using media coverage instead of, perhaps, legal filings, is one possible source of bias, as is choosing a "conservative" side in some of these debates.
A few examples, including two I mentioned in an earlier thread:
Current controversies on state licensing laws used to prohibit the hiring of illegal immigrant workers. Is that a "conservative" issue? There are conservative groups on both sides. Take the current Ninth Circuit case I mentioned before: Arizona Contractors Assn v. Candelaria. Chamber of Commerce and a variety of employer groups, often considered "conservative," arguing that they are not in favor of illegal immigration but against governmental intervention, oppose the state law. Other conservative organizations, including Eagle Forum and a number of immigration restriction organizations, support the state law. (Disclosure: I filed an amicus brief in support of the state law, arguing that the Chamber and other amici actually oppose limits on illegal immigration and other limits on hiring workers and that they offered disingenuous positions.) I would think that most academics would find the traditional "conservative" position to be with Eagle Forum, yet the libertarian view would likely be "let them hire whoever they want."
Official English laws. Perhaps less of a split between conservative organizations here, but likely still some opposition from libertarians. At least that was the positions of several during the most recent thread on this topic here on VC. Again, a very specific business-"conservative" split; as evidenced by the Chamber's massive spending in last week's ballot initiative vote in Nashville, arguing that support for Official English could undercut efforts to lure foreign businesses to open factories in Nashville.
And now that you mention "cultural assimilation for immigrants," which I hadn't seen before as one of your cultural issues for conservatives, let's talk about the most familiar part of that issue for most observers: bilingual education. The Supreme Court just granted cert in Horne vs. Flores, the first case in years to deal with teaching English to kids. The initial question is federalism -- does the 9th Circuit have the power to force the Arizona legislature to appropriate additional funds for bilingual education. But dig deeper: the case is about how America teaches English to kids. Do we use a "process" test of how much money is poured in? Or do we use a "results" test, to see whether the kids learn English? The 9th Circuit rejected a results test, and ignored the recent developments in how we actually teach kids.
Nobody is arguing that kids should be left alone to learn English "like my grandparents did when they got here" (perhaps the libertarian position); everyone disagrees on how to fund their teaching, and some people disagree on how best to teach them. Nobody uses the term "bilingual education" any more, because that means "native language instruction," and every study shows that native language instruction doesn't work, which is why voters are rejecting both the term and the form of bilingual education. I'll always remember the recent Colorado bilingual education initiative: the "pro" position was by Hispanic parents who wanted their kids taught English; the "anti" position was funded by a liberal billionaire heiress whose not-particularly-subtle ads said: "if this initiative passes, those non-English-speaking kids will sit next to your kid." What was the "conservative" position there? Or is it a non-ideological response to past ineffective bilingual education programs, which left kids illiterate in any language?
Stick around. Wait for the inevitable posts about gay rights or teaching evolution in schools. Then brace yourself.
Perhaps these people are not real libertarians. I would grant you that. You'll have to decide, or at least ask them. I don't particularly care what labels people put on themselves, actually -- what I care more about is how they vote. That's the important thing.
"Libertarians support legal private discrimination on the basis of freedom of contract or association grounds, not because they think they are good policies for a business to adopt. People should be free to make poor choices."
I understand. and some people DO argue that. However, they lost that argument in the 60s. Few people today would argue that I could open a restaurant and refuse to serve blacks on any grounds. As a society, we decided back then (and if anything, it is stronger now), that if you have a business, you cannot discriminate (with few exceptions) on the basis of race, sex, religion, disability, age, and others. In many juridictions, sexual orientation in included as well.
I guess libertarians can keep arguing about that. And they can also argue about the Civil War, if they like. But today, such arguments are pointless because they are lost and won't be changing anytime soon. Me, I would prefer to argue about issues that still matter.
Also, while Brookings is mostly a moderately liberal organization, many of its initiatives on the mechanics of the federal bureacracy, e.g., the process of vetting Plum Book appointees, is decidedly bipartisan.
Another huge, and influential, bipartisan mediator group is the National Conference of Commissioners on Uniform State Laws, which in connection with the American Bar Association and American Law Institute (also bipartisan mediator groups) attempt to forge uniform state laws. The American Bankruptcy Institute serves a similar, but narrower role.
The National Council of Churches was conceived as a bipartisan mediator group, but was largely rejected by evangelicals, so it hasn't turned out that way.
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