July 17, 2014

SO LAST YEAR I HAD DINNER IN NEW YORK with an InstaPundit reader who’s a big donor to libertarian causes, and he asked me where he should be steering his money. Because I somehow failed to mention the obvious InstaPundit Private Jet Account, I instead suggested that he put some money into lawfare. Lefties are really good at it, but the right does much less, meaning that there’s a lot of low-hanging fruit. Groups like the Institute For Justice, FIRE, Landmark Legal, etc. do good work, but they’re vastly outnumbered by similar groups on the left. Now here’s a passage from Kurt Schlichter’s Conservative Insurgency, a sort of World War Z-style oral future history, on just that subject:

We started calling it “conservative lawfare,” and it drove the progressives nuts. What made them so vulnerable was not only the dubious legal grounds of their actions but their manifest pettiness and unfairness. You see, lawfare — as progressives themselves used to understand — was not just about winning on the merits of a particular lawsuit. It was theater — it highlighted and put in front of the public these big government actions that could not be swept under a rug. You got to court, and unless you dismiss the case following a settlement, the court has to rule one way or another. Something has to happen.

Most Americans are generally fair-minded, and they saw how essentially unfair many of these government actions were. And when the progressives doubled down — which they always did — they looked awful. It was not always a matter of winning or losing the case itself. We lost a lot of cases . . . . But what really mattered, what really helped the movement, was showing the injustice of progressivism. Lawfare let us do that . . . .

We call that “shaping the battlefield.” You look for where and when you have the edge, and then you make the enemy fight you there and then. That’s especially important for insurgents. Our conservative lawyers understood that instinctively. . . . I threw money at lawyers because we could win in court. We wanted to get the government and the progressives in court because that took away all their advantages. I was a big proponent of lawfare right from the beginning because I saw that was where we could draw blood. I funded a lot of lawyers. There was a glut of them, and I could get them cheap so I found some talented ones and created a public interest law firm. . . . It was great. No case was too big or too small. The government was constantly having to get up and publicly defend its nonsense. Win or lose, we won. . . . I used to say that conservatives had to harness the power of lawyers for good instead of evil. The left had been using the courts for generations to chip away at our Constitution; we needed to use it to rebuild our rights and our freedoms. And, along the way, to give the progressives fits.

Like I said, there’s a lot of low-hanging fruit out there, waiting to be taken advantage of. And, by the way, Schlichter sees a libertarian/conservative alliance as the key to success. I think that’s right.