“Unhappy is the land that needs a hero,” wrote Bertolt Brecht in “Life of Galileo.”
I am a proud alumnus of both Columbia University and the Paul, Weiss law firm — I’m also a conservative, though an anti-Trump, Republican. Like many others, I am distressed to see both these great institutions submit unheroically to the coercion of a heavy-handed government.
But the main lesson I take from their decisions to accommodate the Trump administration is that Brecht was right: Heroic resistance by large institutions to the demands of the United States government may be impossible and should be unnecessary. If there is a need for heroism, it reflects a deeper malady.
The only real solution is to lessen the government’s power to coerce.
By now you probably know the story: In March, the Trump administration announced that it was canceling $400 million in federal grants to and contracts with Columbia. The school quickly agreed to make policy changes that the administration demanded, presumably to get the money back. President Trump also signed executive orders aimed at several law firms, including Paul, Weiss. In its case, Mr. Trump ordered measures to suspend security clearances for anyone at the firm and to terminate government contracts with it. The president agreed with Paul, Weiss to drop the executive order in exchange for $40 million in pro bono legal work for some of his favorite causes and other commitments.
Whether Columbia and Paul, Weiss caved or prudently compromised has been the subject of much debate, but it’s obvious both institutions took painful steps to get the government off their backs. I find the administration’s actions offensive — in fact, oppressive — and I wish Columbia and Paul, Weiss hadn’t yielded to them. But I’m not joining those who condemn the leaders of the university and the law firm, because I’m not convinced they could have done anything other than what they did. It’s easier to encourage other people to defy the government than to do it yourself.
We should remember that something similar happened before: In the late 1960s and the 1970s, the heroes of the civil rights movement — and they were heroes indeed — had largely achieved their original aim, the elimination of the Jim Crow regime in the South. But they, as heroes often do, looked for new worlds to conquer, and many of them and their successors went on to call for racial preferences in hiring, contracting and academic admissions, under the euphemism of affirmative action, to remedy the effects of past discrimination.
Soon they had a sympathetic federal government on their side. Among other things, executive orders by Presidents John F. Kennedy, Lyndon Johnson and Richard Nixon and federal laws like Section 8(a) of the Small Business Act served directly or indirectly to establish minority preferences. Taking race into account in university admissions was for decades common practice, until the Supreme Court banned it in 2023.
Doubtless, at the outset, some leaders of such institutions as Columbia and Paul, Weiss thought racial preferences were wrong, but they really had no choice but to practice them, because their institutions were dependent, for one reason or another, on retaining the favor of the government and avoiding the censure of the impassioned elites who drove federal policy.
Affirmative action policies were supposed to be transitional, to last only until social justice had been achieved; but they lasted for more than half a century, and many of those who had doubts learned to tolerate, even approve of, discrimination against those perceived as overprivileged. Many younger people today cannot remember a world without such discrimination, and perhaps do not think one ever should exist again.
But latter-day heroes — and now I use the term ironically — sought more worlds to conquer still, and affirmative action helped sow the seeds for the monstrosities known as D.E.I. and cancel culture, in which institutions were afflicted not only by diversity bureaucracies that were useless at best, but in many cases by the punishment or banishment of those who did not worship at the newly established church. Even those evils, I grant, were not remotely comparable to the evil of Jim Crow. But they were sufficient unto the day.
While there was some backlash to affirmative action and its outgrowths, I was long surprised that it was not stronger — until now, when “D.E.I.” has become an epithet, hurled as recklessly as “racist” used to be a few short months ago (and in many circles still is). The backlash has gone further than even I would have liked. I will be happy if D.E.I. is obliterated in government, but I think private citizens and businesses should be allowed to do as they like. And I think many other crusades of the people who are now stamping out real and imagined forms of D.E.I. range from grossly overdone to out-and-out insane.
Please don’t think I see no difference between the old days and today. The affirmative action crusaders of the ’60s and ’70s were often overzealous, but they meant well. They thought they were building Utopia.
I imagine that many of today’s anti-D.E.I. crusaders, who are at least equally overzealous, think the same thing, but others — most conspicuously the president — seem bent on doing as much harm as possible to people they clearly despise. Still, it may be well to remember that they have a precedent; perhaps the common features of the two episodes can teach us something.
First, that when a government of enormous power uses that power for purposes we consider bad, it rarely helps to demand heroism of the victims. If, in the 1970s or 1980s, a university with federal grants had said “we reject racial preferences; we’re going to be colorblind,” it almost certainly would have put those grants at risk. A large law firm or other business that did the same almost certainly would have been excluded from government contracts.
So, too, in the present moment, as the chairman of Paul, Weiss has explained to his colleagues, the firm could not survive a battle with the Trump administration. Even if it prevailed in court, too many clients would refuse to hire a firm that the United States government perceived as “persona non grata.”
True, other law firms seem willing to fight it out. I admire their decisions, and I wish them well.
But as Brecht told us, it is an unhappy land that needs heroes. Our land will be in important ways unhappy as long as its government has the power it does to manipulate, or threaten to manipulate, such things as subsidies and security clearances and contracts to the disadvantage of anyone with whom it is displeased.
The only real answer is for Americans to recognize the need for a government with less power and more limits on the power that remains. That idea once had natural appeal for Republicans — perhaps it will again one day. Meanwhile, Democrats, whose general inclination has long been to think that more government is a good thing, may learn to appreciate the other point of view.
Robert S. Smith was a student and visiting professor at Columbia Law School, a partner at Paul, Weiss and a judge on the New York State Court of Appeals.
The post I’m an Alum of Columbia and Paul, Weiss. There’s an Uncomfortable Lesson in Trump’s Tactics appeared first on New York Times.
