The New York Times has broken the news that the American Constitution Society (ACS) has a new president, Phil Brest. I have known and worked with (though more often against) Phil for almost a decade now and consider him a friend. Presumably, if it’s in the Times, the ACS board’s vetting is over, and I can say that without jeopardizing his position.
Oftentimes, it’s nice to have incompetent opponents. It can make winning easier. But in the practice of law, the rule of thumb is that it’s better if your opponent is talented. Most good lawyers want good lawyers on the other side of the “v” just like most good judges want good judges on the other side of their court. There’s less time wasted on nonsense, and it forces you to do a better, tighter job. Justice Scalia had a line I’ll mangle when Justice Breyer was selected that went something like, “If I knew he’d pick Ruth and Steve, maybe I should have voted for the guy!” Phil at ACS gives the conservative legal movement a talented opponent.
I can’t say the same about his predecessor, former senator Russ Feingold. Under Feingold’s nakedly partisan leadership, the organization was unimpressive — and, as best we could tell on the right — uninfluential. It was focused on issue advocacy, litigation, and political fads in ways that prevented it from building the kind of institutions and networks the assiduously non-partisan Federalist Society has. To quote Senator John Kennedy, “If you’re gonna be a bear, be a grizzly,” and the fact is that the Feingold ACS could never out-partisan and out-hack their competitors at Demand Justice, whose ruthless, purge-like approach to Democratic politics made them a political — if not intellectual — force to be reckoned with.
If I were ACS and I wanted a change for the better, Phil would be my choice. We’ve fought far more often than we’ve agreed, but we could agree when we needed to, and I never disliked him in the process. Just reading his interview in the Times, he gets where his allies are on a question like the “blue slip” but also clearly is willing to look at it from the correct perspective — competing institutional prerogatives, not transient partisan outcomes. Does that mean he’ll endorse the practice? Who knows. Frankly, my advice would be not to take any position on it. Instead, he should build up an intellectual infrastructure that helps Democrats think about it in ways that go deeper than their facile alternating views of “Alina Habba Bad!” and “Republican Senators Racist!” depending on whether Trump or Biden is in charge.
So I wish Phil the best — if not luck — and am curious to see how we legal conservatives get better now that we have a talented opponent.