The Conservative Legal Establishment’s Strange Youth Culture

Benjamin Wittes

When I knew Monica Goodling, a few years ago, she was the Department of Justice public affairs staffer with whom I preferred to deal. In her late twenties, she had come over to the department from the Republican National Committee; she was smart, capable, and conversant enough in the war on terrorism issues about which I was writing Washington Post editorials to be helpful. She always got back to me promptly. And, while she parroted party line attitudes, I thought nothing of it. She was a flack, after all; that was her job. She never betrayed any sign of being some kind of Christian Right warrior. Had I been asked at the time to pick the department staffer likely to become the political enforcer for Alberto Gonzales, I never would have picked her. She was just one of the army of young, eager, ambitious lawyers who make up the conservative side of Washington’s legal world. Emphasis on “young.”

Yet there she was on Wednesday, confessing under oath before the House Judiciary Committee to the unpardonable behavior of applying political criteria to potential career hires. She conceded that she “crossed the line.” One committee member asked her specifically: “With regard to the hiring of the career assistant U.S. attorneys … did you ever act as a screener for Republican candidates for those positions?” Goodling, now 33, responded, “I think that I probably did.”

Liberals keen to pull intellectual rank on conservatives have made a big deal of the fact that Goodling went to Regent University law school—a right-wing outfit that is, well, not an elite institution. But nobody watching Goodling’s testimony could think her stupid. The better explanation, I think, is what Timothy Flanigan—Gonzales’s former deputy in the White House Counsel’s office—called at a recent Brookings Institution panel discussion “the problem of youth” in the Justice Department. “It is when someone takes an idea and just decides to run with it without maturity…the shoot, ready, aim approach to issues of policy or issues of execution of policy.”

Goodling is an example of the dark side of a strange youth culture in the conservative legal establishment, one that offers extraordinary opportunities to people at bizarrely young ages. At least at the elite levels of that culture, it is not a bunch of Regent grads but a group of people with impeccable academic backgrounds. This culture is by no means new to the Bush administration, and it has had some serious triumphs. It has also produced Monica Goodling, who surely would have done better for both the country and herself had she not gone so far so fast.

The conservative legal youth culture is not difficult to explain. The elite legal academy is overwhelmingly liberal, and conservatism is something of a subculture within it. The talent pool of first-rate conservatives it produces is consequently smaller than the talent pool of elite liberals. The result is stiffer competition in liberal circles for the most desirable government jobs. What’s more, the conservative movement has done an excellent job of taking care of its young up-and-comers over the past few decades. So a liberal law school graduate will tend to emerge from his clerkships with fewer opportunities for speedy advancement in government—and better opportunities within the academy itself. The elite of the conservative bar, by contrast, tend to advance far faster. This general market dynamic was compounded by a conscious decision on the part of conservative administrations, starting with Ronald Reagan, to value youth in judicial appointments as a way of guaranteeing longevity of service and, thus, long-term influence.

At its best, the youth culture in conservatism has been a sight to behold. Many of the leading lights of conservative jurisprudence were placed on the bench quite young. Reagan put such figures as Kenneth Starr, Seventh Circuit Judges Richard Posner and Frank Easterbrook, Ninth Circuit Judge Alex Kozinski, and Fourth Circuit Judge J. Harvie Wilkinson on the bench while each was still in his thirties or early forties. While individual liberal jurists have won appointment that young, there is, quite simply, no comparably accomplished group of liberal judges for whom youth is such an obvious theme.

The elder President Bush continued the trend, and his son has as well—appointing a bevy of talented young conservatives to the bench. Brett Kavanaugh’s nomination to the D.C. Circuit Court of Appeals is the most prominent example but far from the only one. The White House also wanted to put Washington lawyer Miguel Estrada—in his mid-forties—on the Supreme Court, after having nominated him unsuccessfully to the D.C. Circuit while he was still in his thirties. (Estrada refused.) Nor has the youth culture been limited to judicial appointments. The current solicitor general, Paul Clement, took the oath of office before his fortieth birthday. At least with respect to the movement’s stars, the youth culture has paid off big, and liberals have a lot to learn from it.

But one doesn’t have to be snotty about Regent University to know that Monica Goodling isn’t a star. She’s a woman of significant capability, who worked hard and believed in the cause. That’s not enough to justify jumping her over the hundreds of better-qualified lawyers with whom the attorney general of the United States might surround himself. Goodling, it turns out, lacked an intuitive sense of the difference between the administration’s interest, the department’s interest, and the public’s interest. These are values that, for many people, require inculcation over time, inculcation that comes with supervision by people who have been around the block a few times. But supervising Goodling was D. Kyle Sampson—who was barely older than she. To put it bluntly, neither of them had any business being in a position of such authority at such a young age.

The conservative legal youth culture was by no means the only culprit in their ascents. Also contributing was the flabbiness that can overtake an administration in its second term. Strong people leave, and their subordinates get bumped up, rather than anyone’s looking hard for the best people to replace them. Gonzales’s weak leadership is also to blame. But the youth culture was clearly a factor. You roll the dice when you appoint very junior people to very senior positions. Sometimes they come up snake eyes.

At the Brookings event at which Flanigan complained of the youth culture at the Justice Department, one of the Democratic Party’s young legal stars also spoke (as did I). Neal Katyal is much closer to a Kavanaugh or a Clement than he is to a Goodling. A law professor at Georgetown University, he argued the famous case of Hamdan v. Rumsfeld in the Supreme Court, successfully challenging the military commissions at Guantánamo Bay. If he were a conservative, he’d probably be on the bench by now. Earlier in his career, as an even younger Turk, he served in the Justice Department under Janet Reno. “One of the things I learned was, when I came in with all these kind of credentials,” he said, “I get there and there are people like [Katyal’s former boss Robert] Litt shutting me down every single time I had an idea.” Litt, also on the panel, quickly responded: “And a damn good thing, too.” Said Katyal amid laughter, “Yes, it was, actually.”

It’s easy to make Monica Goodling the villain here. She did a horrible thing. But she also had no people like Litt looking over her shoulder, people—as Katyal put it—”who are older, who have done it before, … who know why we did it a different way.”

Whose fault is that?