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Wednesday, July 20, 2005

A response to Randy Barnett's essay on the Roberts nomination

I like Randy Barnett, the Boston University law professor who blogs on The Volokh Conspiracy, and I'm not accusing him of being out of touch in general with the real world. But I do think this well-written and -argued essay about the John G. Roberts nomination betrays some of the shortened perspective that's most often found in the tall ivory towers (emphasis his throughout):

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy....

Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted — taking a position, and defending it against all comers — is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

I understand Prof. Barnett's frustration, but the only cure for it would seem to be limiting Supreme Court nominations to "other scholars" — i.e., to law professors. He acknowledges that this cure would have substantial political costs — that if, for example, Dubya had nominated former professor/now Circuit Judge Michael McConnell, the confirmation fight would probably have been made tougher. But I fear that long after the confirmation battles are over, this cure would be worse than the disease.

I have enormous regard for those who write, lecture, and blog about the law, and I've done some of those things myself. I certainly agree that "taking a position" and defending it as part of that writing, lecturing, or blogging is hard. But with due respect, I submit that doing law is substantially harder, and ultimately more meaningful, than just writing, lecturing, and blogging about it. To be an effective counselor for one's clients, a practicing lawyer has to not only be able to understand and articulate his own principles, but to understand and articulate other sets of principles as well, including (but not limited to) his opponent's in that particular case. As an advocate, he then may have the further duty and considerable challenge of "defend[ing] against all comers" a set of principles that aren't even his own, but that his client and/or the circumstances have dictated.

Prof. Barnett acknowledges that "standing up to judicial questioning in oral argument" is a different "kind" of "hard" than, say, the ponderous debates among law professors arguing with each other through law review articles; and academic debates can indeed have consequences and rewards (think tenure) that motivate their participants. But I doubt that Prof. Barnett intends the offense to us practitioners implied by his suggestion that real world legal fights count less, or are performed with less skill and vigor, than academic world legal fights. I actually suspect that the contrary is more often true, especially when one's in the particular sort of legal trenches in which John G. Roberts has been plying his trade. "Trial by ordeal" in the ivory towers? How about "trial by ordeal" in the courtroom? Which is more relevant to judging?

Quite a few practitioners find their real world legal fights to be sufficiently taxing that they're not left with much energy or inclination to make speeches, join advocacy groups, testify before Congress, blog, etc. Even if they are, however, sometimes discretion, exercised through "effort and discipline," may indeed forbid them from taking — particularly for no reason other than the joy of abstract debate — high-risk, high-profile positions that may jeopardize their clients' interests. In fact, one might aptly describe the disciplined exercise of such caution as "being judicious," which would seem to be a plus for a judicial nominee rather than a minus.

"[P]ublic disclosure and scrutiny by other scholars" — well, let's broaden that last word to include not just scholars, but anyone interested in the law and legal system — does indeed make it easier for us outsiders to try to draw conclusions as to what a nominee's core principles and philosophy are. And thus it's easier for outsiders to assess not only academics like Prof./Judge McConnell, but longer tenured judges. But it's a serious mistake to conclude from the fact that we in the public can't easily see a nominee's core principles and philosophy that they don't exist, or that they're underdeveloped or random, or that they're contrary to those which Dubya has promised during both of his presidential campaigns that he'd seek in his judicial nominees. As I've argued at more length last night, Dubya and his staff have had the opportunity that the rest of us lack to assess, through his privileged writings and the views of trusted superiors and co-workers, John G. Roberts' demonstration of his principles and philosophy in action — under more than hypothetical stress, with consequences far greater than tenure, and on exactly the kind of issues that are brought before the United States Supreme Court (because that's exactly where he's been practicing). Surely Prof. Barnett doesn't mean to suggest that a long-time client has a poorer opportunity to assess his long-time lawyer than one academic has to assess another, does he?

I'm glad that Judge Roberts' career includes a year clerking for Judge Friendly in New York for the commerce-heavy Second Circuit, far from both the Rivers James and Potomac. I'm glad that in addition to helping the Executive Branch formulate its legal policy and defending it in the courts, he's also had real-world private clients who have to make payroll and justifiably bitch about their legal fees. The guys over at Power Line said on Hewitt's radio show last night that they have good grounds to believe that Judge Roberts reads blogs (including theirs, and if so, probably also the VC). So am I much troubled that he doesn't also write one, or that he's never been a law professor or an interest group speechifier? Nuh-uh — that doesn't trouble me for purposes either of assessing his suitability as a nominee or predicting his likely performance once he's confirmed as a Justice.

Do I wish that I could personally sit down with Ken Starr and discuss in detail the "I saids" and "he saids" between him and John Roberts that went into formulation of the Office of the Solicitor General's many recommendations and then final positions on complex questions of law before the Supreme Court? Well, yeah, sorta; but I can't, and neither can Prof. Barnett or the senators. Do I wish I could ask Chief Justice Rehnquist for his take on what kind of legal reasoning comes naturally to his ex-clerk John Roberts? Yes, definitely; but I can't, and neither can Prof. Barnett or the senators. Because he's been a practitioner instead of a scholar, those aspects of John Roberts' legal career are shielded from us. But they weren't shielded from Dubya, and it would be a horrible mistake to disqualify from SCOTUS consideration everyone who's actually done law instead of just talking and writing about it.

Posted by Beldar at 02:46 PM in Law (2006 & earlier) | Permalink


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(1) Rob made the following comment | Jul 20, 2005 3:24:48 PM | Permalink

There is another reason an appellate advocate like Roberts should avoid making speeches and the like: if he has argued a view publically, and a client requires him to argue the opposite view, he will be attacked with his contradictory writings. I remember that frequently happening to Mel Nimmer, the great copyright expert who taught at UCLA Law School and wrote extensively, as well as maintaining an active high profile practice.

(2) Carl Pham made the following comment | Jul 20, 2005 3:27:23 PM | Permalink

A very handsome answer indeed, in both senses of the word.

I think one additional distinction between academics and real-world practitioners in any field (and I've been both) is that academics are almost always a little more narcissistic. They like to hear themselves talk, and even sometimes feel talk and words and clean, grand principles are more important than people and the messy contradictory set of facts and attitudes reality so often provides.

I'm perfectly happy that Judge Roberts lacks either the egoism or time to have placed long-winded discourse on the proper role of the Constitution in public record, just in case he was ever nominated to the Supreme Court. I guess he was busy doing his job, instead.

(3) Carl Pham made the following comment | Jul 20, 2005 3:56:30 PM | Permalink

Hey, I also want to note that I sorta predicted this kind of choice from GWB in comments on your blog a while ago.

I didn't think GWB would go for the ivory-tower type at all. He's a heart guy, not a head guy. What I've heard about Roberts are that his strongest points are related to his personal character and his ability to Get The Job Done. But he's maybe a little weak on having articulated in amazing intricate polysyllabic prose any detailed theology of Constitutional law. That's Dubya through and through, I'd say.

I also note VC linked to some comments by O'Connor to the effect that she was very pleased by Roberts as her replacement. Adding this to the worried frowns of those who wanted a doctrinaire judicial monk, less of a "real world" guy -- can I say "I told you so"? Please?

(4) vnjagvet made the following comment | Jul 20, 2005 8:06:39 PM | Permalink

I echo the praise for Beldar's analysis. Put this old trial lawyer squarely in the practitioner's corner over the academic. In the history of the Court, few lifelong academics have been made Justices. Frankfurter and Scalia are the only ones that I can remember that fit that category in my lifetime.

Ginsburg and Breyer have had considerable academic experience, but both were talented advocates, Breyer for the AG's office and Ginsburg with the ACLU.

I have a great deal of respect for both Frankfurter and Scalia, but neither persuaded a significant number of colleagues to adopt the judicial philosophies they had developed while law professors.

I dare say Warren, Black and Brennan were much more influential with fellow Justices than either Frankfurter or Scalia.

Moreover, Frankfurter's judicial philosophy, while changing little, was considered liberal by most when he was appointed by FDR in the late thirties but was considered conservative by the time of his retirement nearly twenty-five years later. Scalia's philosophy has remained styled "conservative", although sometimes it achieves surprising "liberal" results.

So how does Roberts stack up? I think he will be fine. He is bright, persuasive, conservative in his approach to the cases he has decided, and I believe will be persuasive within the court in the right direction.

We'll soon see.

(5) alfonso made the following comment | Jul 20, 2005 10:48:40 PM | Permalink

Will Roberts be a Souter? Very unlikely.
Will he be an O'Conner? Maybe.

His every ruling is being parsed by conservatives as "See, he is nowhere as bad as the liberals claim." Which means in the same breath, he may well not be as good as the conservatives claim.

For example, Hugh Hewitt has been citing the "Rancho Frog" case as proof that Roberts is not as conservative as liberals fear. He makes the point that Roberts' dissent was welcome, but was dissapointingly "not as strong" as he and his team would have liked.

Isn't that the story of O'Conner? She is considered conservative, but a dissapointment in that she is not a strong one.

"Rancho Frog" may prove too typical with Roberts leaning the right way (yes, a pun), but in a rather weak way.

(6) LazyMF made the following comment | Jul 20, 2005 11:13:58 PM | Permalink

Very good article and comments.

I generally agree with Beldar, Carl Pham and vnjagvet, but I'll take issue with vnjagvet's comment that Frankfurter did not generally persuade his judicial peers with the judicial philosophy he developed as a professor.

I'm looking right now at my hard copy of the Official Register of the Harvard University Law School for the 1930-31 academic year. Under course offerings for 3rd year students: "Public Utilities. Professor Frankfurter. Two hours a week. Text: Frankfurter's Cases Under the Interstate Commerce Act(and Supplement)."

If I remember correctly, Frankfurter's persuasive application (and acceptance by SCOTA and other courts) of the Commerce Clause was the intellectual cement for the growing federalism and the burgeoning civil rights movement that took place from the 1930s to the 1960s.

However, I'm still in favor of practioners over academics for SCOTA. I have a feeling that John Roberts won't be the intellectual blowhard Bork was during his nomination process, and who Justice Scalia is 365 days a year.

Beldar may be convincing this liberal to support Roberts much the same way I came to support the former Attorney General of Alabama.

P.S. In case you were wondering, the tuition for Harvard Law School that year was $400 plus an infirmary fee of $10.

(7) vnjagvet made the following comment | Jul 21, 2005 8:38:32 AM | Permalink


I agree with you that Frankfurter's analysis of federal substantive law was penetrating, influential, and persuasive to the judiciary and practitioners of the day.

In the post above, I was referring to his general jurisprudential philosophy of "judicial restraint" while a Supreme Court Justice. My impression has been that he did not bring along too many fellow Justices with that philosophy, and that Black and Douglas, for example, were overtly hostile to it.

It was their view that generally carried the day when the Warren Court got rolling.

I realize this is a oversimplified analysis, but I wonder if you have the same impression?

(8) Scott made the following comment | Jul 21, 2005 1:00:23 PM | Permalink

"taking a position, and defending it against all comers — is hard"

**False premise alert** - being challenged by questioners who are open to alternative viewpoints and who are basically driven by a search for the truth, as is generally the case with legal scholars, is "hard"; unfortunately Roberts is being questioned by partisan hacks driven by conclusions preordained by the democrat political agenda, and so the appropriate adjective therefore is "impossible". Once this simple point is grasped, the rug is forcibly pulled out from under Barnett's entire essay.

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