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December 01, 2004

More on Military Recruiting Case

Sam Heldman-- who filed amicus briefs in the military recruiting case responds to my post with a few interesting comments. Here's a basic strategic one:

One interesting issue, from a political rather than legal point of view, is this: when your clients' interests can be furthered by taking advantage of a legal doctrine that your clients might not generally favor, what should your clients do? Should they refuse on principle to bring the case, or should they ride the wave of the already-growing legal doctrine? I don't claim to have the answer for everybody, but my general view is, ride the wave.

When your client is some individual with direct harm, the obligation is to represent them with any tools available. But since the litigants in this case are law schools fighting for a policy result, there really isn't any difference between the legal and political issue.

And it is politically repugnant to not just "ride the wave" of repugnant legal doctrine but to advocate its expansion. I think Dale's undermining of anti-discrimination doctine was terrible and to see a new decision expanding its doctrine should be worrisome for any progressive. Progressives should promote a principled approach to what the role of courts are in our society. I obviously think the role should be more limited, but whatever your position is, it should be consistent, so "riding waves" is not the right approach.

But I do think it's politically disastrous for progressives to continually promote anti-democratic court decisions. It just feeds into conservatives who picture liberalism as an elitist doctrine afraid to fight for its values through politics, depending instead on elite institutions like the courts.

And on the substance, I just think Sam is wrong when he argues:

Absent some good reason (and again there was zero evidence of a good reason here) a private person or entity ordinarily can't be forced to provide material support to the dissemination of a government-mandated message. Surely all of us have enough of a libertarian streak to see the value in that doctrine.

But this mistates what's at stake in this case. The question is not whether a "private person or entity" can be forced to help the dissemination of a particular message, although I am all for (as are you Sam, I'm pretty sure) private businesses being forced to disseminate all sorts of government-mandated messages, from safety warnings to information about employees rights.

But the issue here is more basic-- if the government is paying the bills, can they put conditions on that money? If the government uses the money to censor people or organizations-- essentially silencing them as a condition of receiving the money -- then you have a danger to liberty.

But if the government is paying the bills of university students and faculty in numerous ways, requiring that the law schools open a room to military recruiters -- rooms partially paid for by the government -- hardly seems like a loss of liberty warranting anti-democratic judicial intervention.

As I've said, I oppose the Soloman Amendment and the anti-gay discrimination by the military, but that's a fight we should be fighting at elections and in Congress. As the dissent noted in the case, it's somewhat ridiculous to argue that there is no possible "compelling state interest" for military recruiting in the middle of a war. I don't like that war, but it's obviously in the present state's interest to keep recruiting people to fight it.

As with gay rights, I think we should fight out these issues politically. I think making them judicial fights are losing strategies, both for these particular issues but for the progressive movement generally.

Posted by Nathan at December 1, 2004 08:55 AM