I think what we have is a society where politics and policy are more or less entirely divorced from each other. They may intersect where policy results in a train wreck that is reflected in politics (e.g. financial deregulation crashing the global economy in 2008, or a doofus wannabe autocrat urging people to, in the throes of a once in a century pandemic, drink bleach), but, day to day, people are not voting for a suite of policy ideas-- they're voting for a sense that someone is "one of them" or "one of the other."
Policy-wise, we'd probably be best off if we handed economic, social and infrastructure policy to a council of Ph.Ds with deep expertise and a long leash. Politics-wise, that would be a train wreck. And the issue in significant part is that atomization is a political winner. Leftists don't do progressive politics any favors yelling about white people needing to apologize, but they're also not a meaningful constituency. The trick is building an inclusive coalition when what resonates on a base level for a lot of people is exclusion. Taxpayer-funded gender reassignment surgeries for prisoners is something Trump and Vance repeated over and over again. To date, there have been two (2) of those. They're a real policy issue for ~0% of the population. These people can't name three transgender female athletes if you spot them Lia Thomas and Caitlyn Jenner. But yelling about those things is probably a political winner because a big chunk of swing voters think transgender people are icky. Same with Haitian immigrants "eating the pets" in Springfield.
What causes me despair is that inclusivity is a losing policy agenda. And even the best set of policies won't reverse that fact. Democrats' best bets electorally seem to be either to run away from protections for marginalized groups if those protections are unpopular or to go scouring far and wide for the next Barack Obama whose force of oratorical brilliance can move voters by itself. It's not very promising.
Professor Burke, extremely specific question, but what do you think is a positive role lawyers can play in this new political reality? A significant aspect of the legal community is focused on regulatory issues and that like you said is going to shrink into irrelevance. On the other hand, perhaps there is more potential for good work in direct client services (ie criminal defense) though even there as you said I fear a judiciary full transformed into a rubber stamp for the regime. Where do you think lawyers or other professionals should look in a world where the opportunities for change are changing?
There will be bodies of legal practice that matter, and your thought is a good one. Judiciaries sometimes slow down or confound authoritarian regimes in useful ways--the South African apartheid state was occasionally interrupted or diverted by stubborn judges who would go against the government, especially on procedural grounds.
I think another area I'd be looking at is property rights as a way to protect non-profits, community groups, etc.--to use the broad body of law that protects property, private life, ownership, assets, etc. from anything that looks like unsanctioned government seizure or intervention. That's particularly important because even if they try to build specific regulatory instruments intended to harass liberals, they're going to pull in the opposite direction as they unravel the regulatory state in other domains. But that only protects so much, as you can see from drug-related forfeiture laws and how they've been broadly misused with judicial sanction for decades now.
The problem really is that this regime will now have the opportunity to switch between domains of governmental power any time they're thwarted in one area--an adverse ruling or a judicial process that is being slow-rolled procedurally could just provoke an executive order, an executive order that gets contested could just lead to a quick legislative sanctioning of the executive order's content, and when all else fails, they'll probably just do directly what they want and challenge any opponent to undo it.
I think what we have is a society where politics and policy are more or less entirely divorced from each other. They may intersect where policy results in a train wreck that is reflected in politics (e.g. financial deregulation crashing the global economy in 2008, or a doofus wannabe autocrat urging people to, in the throes of a once in a century pandemic, drink bleach), but, day to day, people are not voting for a suite of policy ideas-- they're voting for a sense that someone is "one of them" or "one of the other."
Policy-wise, we'd probably be best off if we handed economic, social and infrastructure policy to a council of Ph.Ds with deep expertise and a long leash. Politics-wise, that would be a train wreck. And the issue in significant part is that atomization is a political winner. Leftists don't do progressive politics any favors yelling about white people needing to apologize, but they're also not a meaningful constituency. The trick is building an inclusive coalition when what resonates on a base level for a lot of people is exclusion. Taxpayer-funded gender reassignment surgeries for prisoners is something Trump and Vance repeated over and over again. To date, there have been two (2) of those. They're a real policy issue for ~0% of the population. These people can't name three transgender female athletes if you spot them Lia Thomas and Caitlyn Jenner. But yelling about those things is probably a political winner because a big chunk of swing voters think transgender people are icky. Same with Haitian immigrants "eating the pets" in Springfield.
What causes me despair is that inclusivity is a losing policy agenda. And even the best set of policies won't reverse that fact. Democrats' best bets electorally seem to be either to run away from protections for marginalized groups if those protections are unpopular or to go scouring far and wide for the next Barack Obama whose force of oratorical brilliance can move voters by itself. It's not very promising.
Professor Burke, extremely specific question, but what do you think is a positive role lawyers can play in this new political reality? A significant aspect of the legal community is focused on regulatory issues and that like you said is going to shrink into irrelevance. On the other hand, perhaps there is more potential for good work in direct client services (ie criminal defense) though even there as you said I fear a judiciary full transformed into a rubber stamp for the regime. Where do you think lawyers or other professionals should look in a world where the opportunities for change are changing?
There will be bodies of legal practice that matter, and your thought is a good one. Judiciaries sometimes slow down or confound authoritarian regimes in useful ways--the South African apartheid state was occasionally interrupted or diverted by stubborn judges who would go against the government, especially on procedural grounds.
I think another area I'd be looking at is property rights as a way to protect non-profits, community groups, etc.--to use the broad body of law that protects property, private life, ownership, assets, etc. from anything that looks like unsanctioned government seizure or intervention. That's particularly important because even if they try to build specific regulatory instruments intended to harass liberals, they're going to pull in the opposite direction as they unravel the regulatory state in other domains. But that only protects so much, as you can see from drug-related forfeiture laws and how they've been broadly misused with judicial sanction for decades now.
The problem really is that this regime will now have the opportunity to switch between domains of governmental power any time they're thwarted in one area--an adverse ruling or a judicial process that is being slow-rolled procedurally could just provoke an executive order, an executive order that gets contested could just lead to a quick legislative sanctioning of the executive order's content, and when all else fails, they'll probably just do directly what they want and challenge any opponent to undo it.