Conservative lawyer and erstwhile law school professor John Eastman is most famous for penning a once-secret legal memorandum advising President Donald Trump on how to overturn a democratic election days before the January 6 Capitol insurrection. This act, for which Eastman now faces a congressional subpoena, went a smidge too far even for some on the right. A self-identified decades-long friend of Eastman recently published an article in The Atlantic denouncing his legal theories as dangerous and devoid of evidence, distinguishing him from so-called “principled conservatives” like the author (naturally).
But Eastman is the same guy he’s always been. As indicated by his July 2020 congressional testimony, when he argued that people who are undocumented should not technically count as people under the Constitution, contorted legal arguments in support of white supremacy are kind of his thing. A month later, he famously authored an op-ed arguing that being born in America did not actually make Kamala Harris a natural-born American citizen, thereby disqualifying her for the vice presidency. Since both Kamala Harris and Barack Obama were branded as biologically and constitutionally ineligible for the White House, one can only assume Republicans think White describes the occupant rather than the building.
In just about any other profession, John Eastman would have vanished in disgrace long ago, relegated to hawking survival meal kits on some obscure YouTube channel on the verge of getting permabanned. In the modern conservative legal movement, however, Eastman and others like him flourish. This trend should worry everyone who cares about maintaining a functioning democracy, because the entire legal system becomes less stable—and more hostile to communities disfavored by the Republican Party—when extremist clownery helps conservative attorneys rise to the top.
Many conservative lawyers start down this path before they even become lawyers. Consider the fast-tracked career of Crystal Clanton, a student at George Mason University’s Antonin Scalia Law School who already has multiple federal clerkships lined up after graduation. As the former national field director for the right-wing nonprofit organization Turning Point USA, Clanton earned some notoriety in 2017 when a New Yorker exposé of TPUSA’s alleged illegal campaign activity and racial bias revealed that she had texted another employee some extremely racist things. I’m not referring to JV-level statements about a “surprisingly articulate” Black coworker. I am referring to starting forward-on-the-Varsity-Racist-Team statements that include “I HATE BLACK PEOPLE” and “Like fuck them all…I hate blacks. End of story.” As one such Black person, I find these statements troubling!
Ideologues garner the legal establishment’s approval so long as they uphold the ideology of the white and wealthy and powerful.
This animus might be less consequential if she didn’t have the power to do anything with it. But she will, as future clerk for Judge William Pryor, a conservative’s conservative who sits on the Eleventh Circuit Court of Appeals and was on Trump’s shortlist for the Supreme Court. Soon, Clanton will be working on cases that will determine whether around 8 million Black people—one-fifth of the country’s Black population—can meaningfully participate in the political process, or whether we can remain in our homes during a once-in-a-generation pandemic, or whether we can sue federal agents who violently infringe on our constitutional rights. Who gets to shape the law matters.
Whose voices are left out is just as important. Clerkships—and federal appellate clerkships in particular—are prestigious launching pads into powerful and lucrative legal careers. Clerks are groomed by the legal elite to become the next generation of judges, prominent politicians, attorneys general, and so forth. They are also groomed to become absurdly rich: White-shoe law firms reward former law clerks by paying new hires jaw-dropping bonuses of $400,000—nearly ten times the median annual earnings in the United States. As Al.com columnist Kyle Whitmire put it, “Pryor is a gatekeeper. And when you let one person through that gate, you inevitably leave someone else locked on the outside.”
Clanton’s ascendance shows that for the conservative legal movement, extremism is becoming the expectation, and advancement more or less boils down to who can audition as the most unabashedly aggressive adherent to right-wing reactionary politics. Pryor, for his part, has refused to comment on whether Clanton’s high-profile prejudiced statements helped her get the high-profile job. At the very least, it seems that they didn’t hinder her.
The path to success is not so clear cut for progressives, or anyone even a little left of center, really. From the moment they begin law school, law students learn that clerkship hopefuls should avoid appearing too far left so as to protect their chances at professional development. At every step of the way, the liberal legal elite impresses upon students and attorneys that faithful application of the law requires the absence of bias. It is lost upon them that this is a bias in and of itself—one that favors the acceptance and preservation of an unjust status quo.
This dynamic can both chill students’ activism and also deter them from making career choices that actually serve the public good. At times, the obsession with performative neutrality borders on the farcical: A professor once advised one of my law school classmates to remove a public defender internship from their resume so as to better appeal to a federal bench dominated by former prosecutors and corporate attorneys. In this world, providing legal services to people of color who can’t afford them is framed as “biased”; “neutrality” is protecting entrenched racial hierarchies and preserving corporate wealth. Insisting upon this “neutrality” makes the law more insular and less well-equipped to serve the communities who are most impacted by it.
The legal system has yet to earnestly grapple with its double standard. And to quote the philosopher Shawn Carter’s treatise on hypocrisy, is it “Oochie Wally” or is it “One Mic”? Is ideology a badge of honor or a scarlet letter? The legal profession’s squeamishness about the left and comfort rewarding the reactionary right suggests a disturbing, albeit unsurprising, answer to this question: Ideologues garner the legal establishment’s approval so long as they uphold the ideology of the white and wealthy and powerful. And it’s the brown, broke, and disempowered who are left carrying the burden.
