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Sunday, February 13, 2011

Feldman on the Virtues of Political Justices

I admire and respect Noah Feldman's writing on the religion clauses.  I think that his piece on the intellectual origins of the Establishment Clause was extremely well done.  While I don't agree with many of the claims in "Divided by God," particularly the "and what we should do about it" prescriptions, and while I don't think that at least some of the arguments in the book are original to Feldman, I thought the book was well done overall.

Which is why I am sorry to see another op-ed piece by Feldman that advocates a politicized judiciary and extols the virtues of Supreme Court justices who "play politics" (here are my previous thoughts -- mostly negative -- on similar views of his in Slate).  Feldman writes that the recent criticisms of Justices Scalia and Thomas for entering too much into the political fray fail to account for the fact that past Justices were not at all shy about their political attachments and biases.  His evidence consists primarily of Justices in history who resigned their positions to pursue political office (Justice Charles Evans Hughes) or who were unsuccessfully recruited to do so (Justice Douglas).  He points to Justice Jackson's decision to suspend his judicial duties to take on the Nuremberg prosecutions and to Justice Owen Roberts's chairmanship of a commission investigating the Pearl Harbor attacks.

These political experiences, says Feldman, because they were obtained during the course of judicial tenure, enriched the Justices later opinions.  Feldman doesn't quite say that it was exactly because of his political experiences that Justice Jackson wrote the opinion he did in Eisentrager, but he comes close.  I have no objection to the idea that a judge's experiences, political and otherwise, will influence his or her judgment.  But he draws strange conclusions from something like the obverse claim -- that non-political Justices make distant and isolated decisions -- in the following:

Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

I don't understand this argument, or if I do understand it, I wish I didn't.  Is Feldman saying that had the Justices understood what it's like to be President, they wouldn't have ruled the way they did in Clinton v. Jones?  My initial response is to wonder why not?  What difference should it make that some of the Justices were, or were not, drinking buddies of President Clinton when that case was decided?  Does Feldman think that their positive or negative relationship with Clinton ought to have affected their judgment?  Should the Justices have realized -- in virtue of their keen political sense -- that a decision against Clinton would empower Osama bin Laden, and that they ought therefore to decide accordingly?  Long live Judge Handy.

In much of the rest of the piece, Feldman criticizes conservatives for casting a skeptical eye at liberal Justices who hobnob with liberal opinion-makers, and liberals who do the same for conservative Justices.  I suppose this is intended to lend the piece an air of even-handedness.  But, in my view, it masks an objectionable view of the nature of judging.  Judging is an activity in some sense, at least aspirationally, set apart and removed from the push and pull of politics.  Of course it is true that judges are not and cannot be completely isolated from the political world that the rest of us inhabit.  Of course.  But it's one thing to recognize that fact and nevertheless aspire to a different ideal, and it's quite another to ridicule the aspiration to judicial integrity and the distinctness -- which is to say, the separateness, and in some fundamental way, the isolation -- of legal judgment from the political world. 

It's all too easy to mock "medieval vestments" and "monk"-ishness: like shooting fish in a populist barrel.  More important, the argument that throwing off these trappings of a backward set of ideals and aspirations would actually improve the law, let alone the regard in which judges are held, seems dead wrong to me.        

Posted by Marc DeGirolami on February 13, 2011 at 10:36 AM | Permalink


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Before getting to the "drinking with Clinton" issue, it's important to clarify a common flaw in the critique of Clinton v. Jones. Feldman repeats the idea that the Court "got it wrong" in predicting that the case wouldn't take much of Clinton's time, because the Jones discovery led to Lewinsky and then to the impeachment saga.

This criticism is flawed because it implicitly turns on the existence of the Lewinsky affair, and it faults the Court for not factoring in that the Prez was stupid enough to still be tomcatting in the White House. Had he cleaned up his act, a depo about his Arkansas days would NOT have triggered such a chain of events.

In my view, the Court was right to proceed with that assumption, even if many of us were, pre-Lewinsky, already skeptical about his reform efforts. After all, the alternative would be a decision that essentially says -- even if not openly admitted as such -- "well, we WOULD allow this discovery, based on normal legal principles, but since this is Bill we're talking about, and exploring one affair might uncover others, let's just not lift the rock." That's bad enough.

Then bring in Feldman's drinking/card-playing/social hour notion. If the Court merely learned that he's very busy, and that time for cards is scarce, that likely would NOT have changed their minds. Since the key missing item was the knowledge of Lewinsky, Feldman's argument works only if the Court would have learned, at cards, of his ongoing behavior, and would have backed off because of THAT.

One need not be a fan of the Lewinsky investigation or the impeachment to be disgusted at the notion that the Court would have backed off if they'd known what he was still up to.

Posted by: joe reader | Feb 15, 2011 2:43:08 PM

My recollection about Judge Posner was that he was one of the first to give intellectual cover to Bush v. Gore. I call that intermeddling in politics.

Posted by: Jim von der Heydt | Feb 14, 2011 10:40:23 AM

Howard, I agree that there is a difference between the insight one gets about the presidency from drinking with the president, and the insight/understanding/camaraderie one gets about a particular president from drinking with him. Still, I don't think it's easy to separate out these two kinds of insights, or the influence on judging that they may have. Those who drink with Clinton both like him and are likely to understand what the obligations and responsibilities of the presidency are all about. Those who don't won't.

On the Posnerian pragmatist front, I also agree in part -- that's what brought Judge Handy to mind. On the other hand, I think it's possible to be a Posnerian pragmatist judge without being a self-consciously political judge, or without inter-meddling at all in politics. Judge Posner is an example.

Posted by: Marc DeGirolami | Feb 13, 2011 3:52:50 PM

With respect to Justice Jackson, consider his opinion in The Steel Seizure case. Many of the Justices in that case had various connections with Pres. Truman, some ruling against him (majority), others (minority) for him.

Posted by: Shag from Brookline | Feb 13, 2011 3:22:55 PM

I read Feldman's point about Clinton v. Jones differently--not that the Justices should decide differently because they liked Clinton (having had drinks with him), but that, having drank with him, they would have a better sense of what the President does and thus a better sense of the consequences of ruling against him, which they then can (and should) take into account in deciding the case. It sounds like a form of Posnerian pragmatism.

This is not to say that I agree with Feldman's basic argument--just to say that it is less, if you will, political.

Posted by: Howard Wasserman | Feb 13, 2011 3:10:04 PM

How much of the voting public was aware contemporaneously with the political actions by the justices up to, say, the time of Abe Fortas? In more recent years, with the speed of the Internet, such actions become quickly and broadly known. This is not to say that earlier justices should be excused for political activities, but the fishbowl makes it somewhat different today, especially after Bush v. Gore, with respect to judicial integrity.

By the way, Friday's NYT had a letter to the editor from Bruce Fein critical of Justice Scalia's meeting with congressional Tea Party members.

Posted by: Shag from Brookline | Feb 13, 2011 1:42:37 PM

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