The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is Mike Luttig A "Prominent Conservative"?
That may have been true about two decades ago, but conservative is as conservative does.
The front page of CNN.com blares the headline, "Prominent conservative endorses Harris, calls Trump a threat to democracy." Below the photograph of Mike Luttig is the caption, "It'll be the first time the retired federal judge, a veteran of two GOP administrations, has voted for a Democrat."
Is Mike Luttig "prominent"? And is he still a conservative? At one point, he was unquestionably both. The former Wunderkind held senior posts in DOJ and was appointed to the Fourth Circuit before most lawyers make partner. He was at the tip-top of the Supreme Court short list, but President George W. Bush passed over him to select John Roberts and Samuel Alito. In 2006, Luttig retired from the Fourth Circuit and became general counsel of Boeing. After that point, he fell off the map. I had completely forgotten about him. I had never seen him at any Federalist Society event. He did not offer any public advocacy. He said nothing about the leading issues facing the conservative legal movement. He was a non-entity.
But then January 6 happened. And the Luttig hagiography emerged. Greg Jacob, Mike Pence's counsel, relates that Luttig had no conversations with Pence prior to January 6. Jacob simply cited some of Luttig's tweets in his already-completed letter. That's it! Yet, somehow, Luttig is commonly viewed as Pence's close advisor, and a person who helped save the Republic. Never happened.
Since January 6, I cannot think of a single "conservative" position that Luttig has taken on anything. He has filed amicus briefs in several Supreme Court cases, always on the liberal side of the issue. As best as I can recall, he said nothing favorable about Dobbs, perhaps the crowning achievement of the conservative legal movement. Most recently, he has said nothing at all about Senator Schumer's nuclear jurisdiction stripping bill. He has organized a new organization that is meant to be a counter to the Federalist Society. All of his pro-democracy advocacy may as well be an in-kind donation to the Kamala Harris campaign. Formally endorsing Harris was a foregone conclusion. By what measure can Luttig still claim to be a conservative?
David French also recently endorsed Kamala Harris (which I flagged here). He offered this self-reflection:
I'm often asked by Trump voters if I'm "still conservative," and I respond that I can't vote for Trump precisely because I am conservative. I loathe sex abuse, pornography and adultery. Trump has brought those vices into the mainstream of the Republican Party. I want to cultivate a culture that values human life from conception through natural death. Yet America became more brutal and violent during Trump's term. I want to defend liberal democracy from authoritarian aggression, yet Trump would abandon our allies and risk our most precious alliances.
The only real hope for restoring a conservatism that values integrity, demonstrates real compassion and defends our foundational constitutional principles isn't to try to make the best of Trump, a man who values only himself. If he wins again, it will validate his cruelty and his ideological transformation of the Republican Party. If Harris wins, the West will still stand against Vladimir Putin, and conservative Americans will have a chance to build something decent from the ruins of a party that was once a force for genuine good in American life.
French, Luttig, and others have joined the august company of people like John Paul Stevens and David Souter, who insist that they never moved to the left, but the conservative party moved too far to the right. Tell me about it. To paraphrase Rahimi, legal conservatism is not trapped in amber. To paraphrase Forest Gump, conservative is as conservative does. As I wrote last year, "there should be a statute of limitations for calling a person a legal conservative."
