David Warsh: Judge Ellis and the rise of conservative Republican judges

The front of the U.S. Supreme Court Building.

The controversial four-year prison sentence {considered very light by some legal observers} handed down for Paul Manafort last week will bring renewed attention to the career of Judge T.S. Ellis, of the U.S. District Court for the Eastern District of Virginia.  It’s an interesting story, to be sure.  After graduating from Princeton in 1961, Ellis piloted F4 Phantoms for the Navy before graduating from Harvard Law School, in 1969, and Magdalen College, Oxford, in 1970.  He practiced law in Richmond, Va., until 1987, when President Ronald Reagan nominated Ellis to the district bench, the same day he proposed Robert Bork for the Supreme Court.

That was the summer that former District Court Judge Lawrence Walsh began his investigation of the Iran Contra affair, as special counsel to the Department of Justice.  (He had served as Deputy Attorney General during Dwight Eisenhower’s second term.) Judge Ellis’s distaste for wide-ranging independent prosecutors is said to have begun then, and escalated during the Whitewater proceedings, along with the aversion of Congress.

I spent last week reading The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, 2008), by Steven Teles, of Johns Hopkins University.  It is gem of a book, quite unlike several other histories of various aspects of the conservative movement that I have read in that Teles, a liberal, musters considerable sympathy for those whose story he is telling.

Rise was his second, after obtaining his PhD in political science at the University of Virginia . (WhoseWelfare: AFDC and Elite Politics [University of Kansas, 1996] was his first.) For much of his research, Teles worked as a dispassionate reporter, interviewing principals and gaining their trust. Many of the documents he used were given to him. “Serious political earning,” he writes, “requires a view from the inside, and with it an effort to empathize with the challenge faced by the actors from who one wishes to learn,”The Rise of the Conservative Legal Movement casts no light on Judge Ellis’s own intellectual odyssey, but it brilliantly illuminates his times.

Teles begins by sketching what it was that the conservative legal movement was up against, a liberal legal movement with deep roots in the New Deal. The National Association for the Advancement of Colored People and the American Civil Liberties Union in the 1950s fashioned a new activist approach to the law, and by the early 1960s the leadership of the professional bar began to join in.  A turning point was the landmark decision in Gideon vs Wainwright, in 1963, in which the Supreme Court required states to provide legal representation to persons accused of serious crimes who could not afford counsel. Oversight by the Office of Economic Opportunity gave rise to legal aid societies.

Conservative backlash followed, but was largely ineffective.  Former American Bar Association President Lewis Powell wrote a memo for the U.S. Chamber of Commerce shortly before Richard Nixon nominated him to the Supreme Court, arguing that legal activism posed a grave threat to the very survival of American business, but that  businessmen had “responded – if at all – by appeasement, ineptitude, and ignoring the problem.”

But the first generation of conservative public interest groups was ineffective.  (During his own court tenure Powell was seen as a centrist, not a conservative.) Efforts under Nixon to “defund the Left” worked only at the margins. Teles writes, “Conservatives slowly recognized that they needed to develop their own apparatus for legal change, one that could challenge legal liberalism in the classroom, the courts, and in legal culture.”

The way out of the wilderness turned out to be intellectual.  The law and economics movement, founded by Henry Simons and Aaron Director after World War II at the Law School of the University of Chicago, gathered steam when Ronald Coase joined the faculty in 1958. Henry Manne, alumnus and serial entrepreneur, introduced the new thinking to Federal judges, starting at the University of Rochester.  And law professor Richard Posner, later an influential Federal appellate judge, published an influential textbook, Economic Analysis of Law, in 1973. Teles doesn’t stint on drama here, dwelling on Manne’s failed attempt to found a “Hoover Institution East” at Emory University in the early 1980s.

Similarly, Teles’s account shows how the Federalist Society filled a need. Organized with great fanfare in 1982, dedicated to burnishing the credentials of conservative lawyers, the Federalist Society opened chapter in significant law schools as quickly as possible and only slowly developed a national office.  At first it existed mainly to foster debate, to attract new members. Only after the defeat of the Bork nomination did the society begin to conceive of itself as a “counter-ABA,” grooming and vetting candidate for office.

It was when the first generation of grassroots activists and business executives gave way to what Teles calls a “new class” of  academics and legal professionals that the conservative legal movement found its feet, even though much trial and error remained. The rise of the conservative legal movement is too often told in terms of a “myth of diabolical competence,” by writers on the right as well the left. It turned out that three kinds of networks were required – intellectual, professional, and political, in addition to imaginative patrons. The other ingredient, Teles continues, is frank internal criticism. The most important document in reorienting conservative strategy was a testy memo written for the Scaife Foundation in 1980 that circulated widely among conservative foundations, criticizing donors’ previous efforts and pointing the way to the Federalist Society.

As noted, Teles is a liberal.  His third book was Prison Break: Why Conservatives Turned against Mass Incarceration (with David Dagan, Oxford 2016); his fourth (with Brink Lindsey), The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth and Increase Inequality (Oxford 2017).  With Robert Saldin, of the University of Montana, he is working on a fifth, about Republican opponents of Donald Trump. Meanwhile, The Rise of the Conservative Legal Movement remains an enduring contribution.  A journey of a thousand miles begins with a single step.

David Warsh, a veteran economics and political columnist, is proprietor of Somerville, Mass.-based economicprincipals.com, where this piece first ran.