Life Watch: What I Heard & Saw in Boston

Boston: only two hours away from me on the road, and yet I am almost never there. When I am let out, on furlough, from the People’s Republic of Amherst, I am usually in Washington or New York. Boston contains, for me, many colorful, beckoning friends; still there are these subtle hints, often cast up by the place. As in the absence of street signs. The driver from out of town, trying to find his way among irregular, angled streets, finally grasps the message implicit in the exercise: If you don’t know your way around, you probably don’t belong here. And now, with all of the construction taking place in the old downtown, driving in this maze of debris and detours rather conjures up a sense of what it must have been like to drive, say, in Seoul, South Korea, circa 1951. Or, this is what Seoul might have felt like if it had the rubble of war—and Barney Frank. But I made it to Boston early in January in order to speak at a meeting of the Pro-Life Lawyers. The last time the group had assembled, three years ago, the speaker was Henry Hyde. In the interval there came the shootings at the abortion clinic in Brookline, only days before the annual dinner. Rising to the occasion, the Marriott canceled the dinner for the Pro-Life Lawyers out of concerns for “security.” The fear, apparently, was that the gathering would be misunderstood as a dinner to raise money for John Salvi, the young man who had done the shooting and would later take his own life. The sponsors of the dinner could themselves gauge the hostility in the air, and so they prudently deferred the meeting for another time.

Now, two years later, they were determined to resume these annual meetings, to make a public showing once again. Tempers had abated, and yet things still were not the same: The Marriott at Long Wharf was willing to house the dinner, but there was a palpable reluctance, a holding back. One manager wondered whether the group had a usable acronym to post on his board, so that he would not have place on a marquee those incendiary words, “Pro-Life.” As things turned out, there was no incident to mar a rather warm, engaging evening, made all the lovelier by the presentation of the Thomas More Award to Mary Ann Glendon of the law school at Harvard. The award was aptly given, and even more handsomely received. It was received, that is, by Mary Ann with the kind of grace that draws attention away from the recipient to the cause, or to the principle, from which the award springs. But beyond the loveliness of the occasion, and outside this hall, there was evidently a chill in the air that would not go away.

For the trip brought this additional bit of news from a friend, an accomplished lawyer in Boston, who has taken a leading role among the pro-life lawyers. He had trained at Harvard; he had argued before the Supreme Court of the United States on other matters—and won. He has been a partner in one of the oldest firms in Boston, and he already had engaged his considerable wit in defending Operation Rescue pro bono, without taking any fee. He had just been gearing up to go to court again, this time to defend a new statute in Massachusetts that required the notification and consent of parents in the case of abortions performed on minors. But suddenly the word came down from the management of his firm: He would be ordered not to take the case. In thirty years in the firm, he had never seen any order of this kind issued, and so he insisted on a meeting with the committee of managing partners. The meeting lasted for five hours, and at the end, my friend lost, in a vote of 5-3.

He complained, in the meeting, that his colleagues were giving him orders in the style of a young associate fresh out of law school, and that this move was unprecedented. His colleagues acknowledged that it was unprecedented, but they pleaded, in turn, that it was a hard matter of business: An organization of women at the Harvard Law School had passed a resolution denouncing the firm when my friend had taken up the defense of Operation Rescue. The managing partners were concerned now that this new move would bring forth another resolution, to boycott the firm. If “abortion rights” were identified now with the “interests of women,” the next move might be to bar the firm from recruiting at Harvard. Beyond that, one of the partners suggested that there might be a protest from women in the firm, both lawyers and secretaries, and the firm could be embarrassed by a wave of resignations.

One partner at the meeting asked whether his colleagues were willing to assign, then, to factions of women at Harvard or to secretaries in the building, the power to veto the cases taken by the firm. The answer, again, or the answer that soared above the need to supply an answer, was that this was purely a matter of business. And yet, it could not have been purely, coldly, a reckoning of business. Does anyone really think that one of the plushest firms in Boston would have the least trouble in replenishing its corps of secretaries if there was suddenly a resignation en masse?

The market also is flooded now with lawyers. Did anyone seriously believe that talented students, from the best law schools, would turn away from jobs in one of the most prestigious firms in Boston because a caucus of activist women on the Left had declared an aversion to the firm? On the contrary, the moment could even offer a case of reverse-affirmative action: In a situation quite rare these days, activist women could be taken out of the job pool, and the field might be opened now to males and more conservative women. In fact, as my friend pointed out, it was possible that the firm would become even more attractive to young lawyers, both men and women, who admired the willingness of the firm to stand against the currents of politics and take the pro-life side.

It was not, then, the hard calculus of business that brought forth this decision. It was rather a case in which men of affairs found it easier to make the familiar sounds about “business,” instead of fumbling more awkwardly to explain the real reasons, which were not so fluently spoken. It was easier to mumble about dollars and cents than to take on the discipline of framing a moral justification. That was an exercise usually avoided by men who were more concerned to get their way than to stage an argument.

In fact, the breezy avoidance of the argument may be taken as but another sign of the confidence that marks an “Establishment”: For some people, the holding of power means precisely that one is not obliged to give reasons. And in this case, the display simply confirms the sense that the acceptance of abortion is indeed the settled position of the Establishment. It is now the reigning orthodoxy, and through moves of this kind, in prosaic settings, people are taught what their betters regard as the doctrines fit for their governance.

As readers of this column know, there has been a new argument of late about a crisis in the American “regime.” One leading question has been whether a regime can be altered in its substance, in its essential character, even while its outward forms remain the same. In the classic understanding, the notion of “the regime” ran well beyond the institutions of government: The principles of the regime could be woven into the practice of our daily lives until they become part, as we say, of our “way of life.” A change in regime will not only be felt, then, in a change in the laws, or in the people holding the offices of state. It will make itself felt in the habits of our daily lives, in the things that are regarded as respectable to say, in public or in private.

As I began to report this story, from one friend and one firm in Boston, I found that it was replicated by other accounts of similar experiences at other firms in Boston and New York. We make a profound mistake, then, if we think that these are merely reports on the peculiar experiences taking place in isolated or eccentric firms. They are nothing less than the many small campaigns, carried out by small platoons, and when they are added up, they form a design that describes nothing less than a change in the regime.

And yet, something else is also in the air. At the meeting in Boston there was a delegation of rather gifted, sparkling students from the Harvard Law School. Mary Ann Glendon reports that three years ago, the pro-life group at Harvard contained about ten students. It seems to contain now about eighty. If there is indeed a “new thing” here, new possibilities may also flourish: Might there be new resolutions, brought forth by the Federalist Society or other associations at Harvard and at other schools? Might there be a declaration commending firms for their willingness to furnish counsel to defendants who are pro-life? Might there be a suggestion made that these firms have an honored place among the students looking for positions?

With these declarations, there may be a new lever for insisting that students with these concerns have a compelling interest in seeing these firms represented at their law schools during the seasons of recruitment. We should have learned by now that all of these encounters have political significance. And in modest gestures of this kind, vast lessons can be taught, novel powers may be flexed, new ground can be gained.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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