I remember well how I felt as dawn broke the morning after Barack Obama’s election as president in 2008. My hopes were boundless, my expectations unrealistic. That President Obama did not succeed in mobilizing the deeply transformative political dynamic I dared to anticipate is no doubt true, especially in light of this year’s election results. But looking back, I remain enormously proud of my former student and chief research assistant. Obama achieved great things both domestically and globally, all in the face of deeper recalcitrance and obstruction than most of us had imagined possible.
I spent a bit over a year in the Obama administration, launching a new initiative to enhance access to justice for the poor and middle class. After returning to Harvard, I continued to assist when I could, even though I didn’t hesitate to criticize the president when I thought he had given up too soon on important efforts and especially when I thought he had lost his legal moorings. But his election eight years ago was a ray of sunshine after a bleak eight years under President George W. Bush.
The contrast with how I felt the morning after this election could not have been starker. The electoral vote victory of Donald Trump, a bigoted and ill-informed bully who called forth the worst impulses in many of his followers, and who inspired the emergence of the vilest elements of our society, including unabashed KKK racists and neo-Nazis, felt then and continues to feel utterly devastating. It was an outcome I never ruled out as inconceivable but also never came to regard as genuinely plausible — even when FBI Director James Comey irresponsibly reversed the pro-Hillary Clinton momentum 11 days before the election, only to say “never mind” just a week later, two days before the election. His 11th-hour clarification, whatever its purpose, clearly came too late to undo the mess he had gratuitously created.
I believed, even after that FBI fiasco, that this uniquely qualified, talented, and dedicated woman would soon become Madame President. I knew what Clinton’s victory would mean to my two granddaughters — and to my two grandsons as well. I knew what it would mean to many of my students. I knew what a victory for Clinton, and — I dared to hope — a Democratic takeover of the Senate, would mean for the Supreme Court, and for the Constitution and the rule of law as I understood them. And, at a gut level, I knew what those victories would mean for millions of decent, law-abiding (even if undocumented) individuals, including innocent immigrant children and families who had just begun to emerge from the shadows.
I especially looked forward to the opportunities a victory would give Clinton to prove herself trustworthy, to plug the holes that remained in the Obama legacy with respect to health care and jobs, and to advance a fundamentally progressive agenda. And, most important, I knew that a Clinton administration would fend off the terrible and unjustifiable harms that her opponent’s apparent agenda threatened to inflict on the many poor and middle-class people Obama’s programs had helped to protect from the ravages of a slow economic recovery and from the slings and arrows of racism, misogyny, homophobia, and Islamophobia.
None of that was to be. In the few hours between 8 o’clock in the evening of Nov. 8 and the start of the next day, the glimmer of possible catastrophe turned rapidly into a feeling of foreboding and then a sense of impending doom.
A few hours of fitful sleep ended with a rude awakening. It had really happened.
In the days since, I’ve struggled with what to make of it all. Clinton had won the nationwide popular vote by a wide margin, making the weird and increasingly unjustifiable Electoral College the villain of the piece for the second time this century.
A fervent believer in democracy and in the American experiment, I couldn’t just dismiss the votes of over 60 million of my fellow citizens — not a majority, but damn close. I couldn’t bring myself to say, as some are saying, that nearly half the voting electorate had displayed raw hatred of the “other” or at least a disgusting willingness to tolerate vicious scapegoating and mistreatment of women, people of color, immigrants, Jews, Muslims, members of the LGBT community, veterans who had been captured and tortured, people with disabilities, and other often marginalized groups — all in exchange for the promise of better times to come for themselves and their families.
It was especially painful to imagine that so many Americans, when envisioning “better times,” may well have been thinking not just of their fair share of the economic pie but of a nation of pervasively white, straight, and male privilege — a nation I could hardly recognize as my own.
Even if the aspirations tempting most of Trump’s followers were less retrograde and repressive but were overwhelmingly economic, it remained hard to think of so many Americans eagerly embracing what seemed to me the empty promises of a self-proclaimed billionaire whom many Republicans, as well as nearly all Democrats, rightly called a con man, an immature and ignorant blowhard whose admiration for tyrants like Vladimir Putin and whose business entanglements with Putin-linked oligarchs and cyber-warriors might well have motivated Russia’s grotesque manipulation of the American presidential election.
In trying to empathize with Trump’s supporters, I’ve been moved by the thoughtful observations of people like J.D. Vance (“Hillbilly Elegy”) and Michael Moore holding coastal elites (and folks like me, for sure) responsible for our blind failure to appreciate, and to address convincingly, the economic travails of people all over the country, especially noncollege whites living in rural communities or in ravaged, formerly thriving, industrial areas, all left behind by technological and cultural change. Of people who were struggling mightily to care for their families and who were more than ready to vote for someone they could see as not beholden to Wall Street or to other self-important elites who looked down on them.
And yet I remain deeply perplexed by how to empathize with those whose needs, priorities, and attitudes differ dramatically from my own without becoming complicit in the evil that those other priorities and values might yield.
I do know that I must use all my legal skills to fight that evil if and when it occurs, and to prepare to fight it on the premise that it might occur with little or no notice. I must work tirelessly with other lawyers and with my students — without pay, of course — in planning legal and political strategies to defend the vulnerable from Trump-authored or Trump-inspired violations of their fundamental rights, whether those violations take the form of outright discrimination and subordination or subtle, systemic infringements.
We must take what feels like this dark hour to shine light on abuse and to deploy all our knowledge and ability to combat it. We must be proactive and not just proceed from a defensive crouch. I have told my students that it does no good just to feel devastated, as many (of course not all) of them do. Now it is our turn to give back in as full a measure as we can. Let’s accept the challenge and run with it.