As a general matter, lawyers tend to be conservative. Not in the sense that they are right-of-center. Indeed, lawyers skew left. Rather, attorneys favor stability: support ideas they know, approved by people they trust, that are communicated through established channels. That preference for the status quo can be altered in one of two ways. The first approach is familiar: a slow, iterative process, in which marginally-revised ideas percolate by established elites, who then use traditional mediums to reflect the fact that the idea has gained mainstream support. After the idea reverberates around the echo chamber long enough, the idea is now part of the new normal. By contrast, the second approach bypasses all of those traditional trappings: a person with the requisite clout proposes a radical new concept, which shocks the elites into fierce oppositions, thus legitimating the idea, and bringing the idea into the mainstream. In politics, this process is known as shifting the Overton window. In law, we can call it shifting the Hoverton window.
Of course, I write about Judge James Ho. Two weeks ago, Judge Ho delivered a short speech at the Kentucky Chapters Conference of the Federalist Society. His proposal shocked the mainstream conscience: going forward, he would no longer hire graduates of Yale Law School. Ho's remarks, which have now been published by the Texas Review of Law & Politics, anticipated and addressed most of the criticisms he would ultimately receive. Indeed, it is apparent that Judge Ho recognized that he would be attacked for his views. But such withering criticism is a feature, not a bug to change the discourse.
In the abstract, if a person has an awful idea, the most effective strategy is to ignore the apostasy, and marginalize the speaker. (Several academics openly employ this strategy against me.) In time, the disruption will die down, and the status quo will resume. But disruptive ideas are hard to ignore. First, you have the social media hot takes. Blue check marks looooveeee to dunk on some crazy new idea that conflicts with their priors. Anyone with thumbs and a spool of thread emoji can become a self-proclaimed expert on anything. Second, you have the more sober responses that take the idea seriously, but ultimately reject it out of hand. These pieces invariably find some common ground, and in the process, strengthen the proposal. And third, you have the peers, who call their colleague out for heresy. Along the way, the mainstream press writes about the firestorm. Of course, they quote all the critics, but most journalists have some responsibility to seek out sources from other side. This balancing creates what Linda Greenhouse derided as a "false equivalency." And in time, the radical proposition makes its way into the realm of reasonableness.
