Klingenstein Calls for New Legal Strategy to Counter Political Lawfare

By Tom Klingenstein | Commentary, TomKlingenstein.com

Editor’s Note
In this essay, Thomas Klingenstein argues that the Right has made a category error: treating lawfare as a series of discrete legal disputes when it is better understood as a system of political power. His answer isn’t simply better defense, but counterpressure — a new public-interest law firm, led by Jeff Clark, meant to defend conservative lawyers and make lawfare more costly to practice.

The deeper question, however, is whether an adversarial legal order can remain genuinely adversarial when one side commands the institutions, money, and professional machinery of enforcement. Klingenstein’s argument is that formal neutrality is not enough; power also depends on whether institutions exist that are willing and able to contest it.

Lawfare is the strategic use of legal proceedings to intimidate, distract, defame, or destroy an opponent. Over the past decade, the Left has built a powerful, well-funded network that is carrying out Lawfare against our advocate class. The Left raised at least $183 million last year.

To examine lawfare, we must consider the current context, which is this: we are at war, a cold civil war, against a domestic regime which wants to overthrow America. It is correct to call it a “war,” and not just an unusually wide divide, because the contest is between two moral orders. From a given moral order there flows a given set of laws, values, customs, and other aspects of culture. Obviously, a society can have only one of each. The moral order of the enemy regime rests on group outcome equality. The moral order of our regime, on the other hand, rests on individual merit. These two moral orders—individual merit versus group quotas—are utterly irreconcilable. You can’t admit people to college (or anything else) based on both merit and group quotas. It’s one or the other. This is why today the two political parties can agree on almost nothing. The Left knows that because it knows that it is at war. Thus, it plays by wartime rules. The Right, on the other hand, does not know it and so continues to play by peacetime rules, which include trying to reach across the aisle, a sucker’s game in a war.

One of the most powerful weapons in the Left’s arsenal is Lawfare. But we on the Right don’t understand this; we don’t understand either the nature or power of the Left’s Lawfare.

READ THE FULL ARTICLE AT TOMKLINGENSTEIN.COM