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May 04, 2005

Let's Talk About Lex, Baby...

There has been a lot of argument about judicial nominations lately. I’m going to cut against type here for a few entries, over a few days, and try to talk about the situation in a serious manner.

This may bore you to freaking tears, and I'm cool with that. If you feel you will be bored, please scroll up, or scroll down. Everybody here is more fun to read than I am, when I get all serious. But if you want to get a pretty good ground-up (and biased) viewpoint on the judicial struggle, then read on.

I know a little about the nominations process, but near as I can tell, the only thing that makes it out into the Hinterlands about the nominee uproar – the Hinterlands for in-crowd Washingtoids being the desolation, the abject nothingness outside of Northwest Washington D.C. and the three blocks around the Capitol – is that Pat Robertson and Tom Delay are angry about the Judges, and Harry Reid and the Democrats wont let the Bush picks through for some kind of principled reasons. What the principles are we don’t know, but by God, they’re principles.

I’d like to shed a bit of light on this from the standpoint of somebody who has been near ground zero on nominations, and who has known plenty of people who have gone through the nominations process (mostly for executive branch stuff). It’s not a big deal – there are 3,000 political positions in the executive branch, and they mostly change every four years, and most politicals actually only fill a slot for two to three years before moving on. And a lot of the politicals are drawn from the law firms, lobby shops, think tanks, Hill staffs, and NGO's in town. Thus, if you work in D.C., you probably know a lot of political appointees. Trust me - if they aren’t at least Under- or Deputy Secretaries, it’s no big thing to know a bunch of them.

At any rate, I’ve seen ‘em come and go, and I’d like to discuss, hopefully dispassionately, what is going on in this fight. Yes, I’m a pretty conservative guy in a lot of ways – and if the litmus test against judges who are practicing Catholics continues, I’m going to get more serious about that too – but I’m not so conservative that I can’t speak the truth.

So here goes.

You have to understand a bit about the law. When we killed God during the Enlightenment, one thing we all agreed on is that the law isn’t the word from on high, it’s the work of man. Sure, most folks back then, and many today would argue that the law is informed by religious notions of right and wrong, whether those notions be revelation (biblical) or natural law (mimicking the “laws” of nature, a peculiarly Catholic conceit).

Since laws aren’t holy writ, the law is a process. Western laws came from Greek, Roman, and Germanic disgust with the blood feud. The blood feud was the habit of avenging a bum deal on some goats by murdering the goat dealer’s family, his dog, his clients, and his clients’s dogs. They bring a cultellus, you bring a gladius; they bring a gladius, you bring a fascina; they put one of yours in the valetudinarium, you put one of theirs in the columbarium. It’s the Roman way, Mr. Ness…

A system of rules evolved for managing disputes – and that’s all the law is, a methodical system for handling disputes. This wasn’t unique to the West. The law evolved similarly in China, where the word for law means “method.” That we endow the law with a misty-eyed patina is probably an archaic habit from our anarchic past. War, chaos and disorder were the curses of mankind for most of our history, so it's not shocking that we would have such great and almost mystical respect for this practice that brought an end to so much of human suffering. But it's still just a method for solving problems, no matter what John Crichton says.

Over time, the law in the West developed in such a way as to eliminate arbitariness. The Magna Carta, as Coke, Selden and later Walter Lippman noted, eliminated the King’s right to treat the nobles and freemen arbitarily, at the whim of the sovereign. Later developments in British law extended this protection to the villeins and those tied to the land.

At the same time in Britain, and actually predating the Magna Carta, the Common Law developed. The Common Law was an Anglo Saxon tradition, a series of habits and established procedures for dealing with grievances. It probably grew out of Germanic tribal law, at some level. Again, the Common Law was a process. The people demanded that the law settle a certain type of complaint, the way it had always been settled. If the price for getting drunk and trampling a man’s pepper crop was a cow plus penal servitude involving planting next year’s crop, then so be it. The people had a right to know what to expect when they did wrong, and when they received punishment for those wrongs.

The tradition we inherited from the British, and which is still more or less functional in the U.S. today, combines the two skeins of thought about the law. The emphasis on due process – notice of the laws, and regularized handling of disputes in accordance with the law – is the logical outgrowth of the fight to stamp out arbitrary treatment of the individual at the hands of the state, the voting majority, and other individuals. The emphasis on tradition and predictability – the method of the law and how it will operate in the future – is the natural result of the common law skein.

The law in the U.S. thus seems to me to have two purposes: to prevent the arbitrary treatment of men by the government and their fellow man; and to offer predictive value, so that an individual can learn what the law actually is, chart out its coordinates over time, and establish the direction it is flowing in. This gives the law a predictive value. If it was illegal yesterday and the day before that to scare horses, then it should be illegal today, and tomorrow, and the day after that to scare horses as well.

It is more complex than that, of course. There must be procedures for man to do nasty things to his fellow man – such as imprisonment for murder. But the point of the anti-arbitrariness skein is to force a majority of the people to ratify the bad treatment (through their elected representatives) and the role of the common law is to test that ratification against the existing laws – the constitution and traditional common law notions of justice, etc.

For the law abiding citizen, the key outgrowth of these two traditions, is that the law can serve as a predictor. Remember – law = method. An individual, maybe with the help of an attorney, should be able to look at the law and predict with great regularity how it will handle familiar conflicts. Likewise, any movement in the law through the common law process, should be nil, or slow enough, that the individual can predict how the law will rule on a novel problem not encountered previously.

The heart of the ongoing struggle over the federal appellate courts, is between the traditionalists who adhere to these traditions, and the so-called activists who think the law should be conformed to the political mood of the day – or worse yet, to the political mood that the judge can only wish dominated the day.

In other words, a real traditionalist would look at a murder conviction that seems harsh, and tell the convict that he is stuck with the conviction because he was convicted, and that’s what we’ve always done, sorry about the mitigating factors, but we can’t overturn the vast weight of all the similar problems that we’ve dealt with similarly in the past.

In contrast, the activist looks at the shaky murder conviction that maybe ought to be a manslaughter conviction, and says “I’ll apply my common sense here and overturn it.” A great result is reached in that specific case, and everybody is happy… except for the next guy who comes along. That poor next guy isn’t really sure what comprises murder or manslaughter. Worse yet, maybe he’s an innocent guy, say a lawyer, sweating it out in his bedroom with a .357 while a burglar walks up the stairs. What’s the law in this case? Well, “I know what used to be permitted… but I don’t know what the law is now because judge so-and-so disregarded the old laws in that last case.”

Again, this is an oversimplification, but there you have the difference between the two sides in this debate. The textualists will hew to tradition, and ride a bad one right into the ground waiting for the legislature to change it – but their work product offers great predictive value for the vast majority of people, who never land in court. It also tends to avoid willy-nilly social policy making, again preferring restraint to jousting at windmills. In contrast, the activist can’t bear anything that strikes their conscience as an injustice. This leads to nice results for those who are the victims of actual injustice, or for those on whom the state has decided to drop the hammer. Yet the activists tend to destroy the predictive value of the law, wrecking the reasoning method that underlies the law, and rendering it worthless for the vast majority of men. This has consequences.

I'm not going to throw stones at either the activists, or the textualists just yet. But think about the consequences of either approach, and whether the individual should always triumph, or if society as a whole (which is comprised of a lot of individuals) should always triumph.

Tomorrow or thereafter, I’ll try to tackle the politics of the law and its interpretation.

Teaser: It’s not only liberals who are judicial activists, and conservatives who are textualists. Justice Breyer may be a better textualist than Justice Rehnquist.

Posted by Blackavar at May 4, 2005 10:37 PM | TrackBack
First time visitor to House Hraka? Wondering if everything we produce could possibly be as brilliant/stupid/evil/pedantic/insipid/inspired as the post you just read? Check out the Hraka Essentials, the (mostly) reader-selected guide to Hraka's best posts, and decide for yourself.

Never apologize. God knows no one, aside from maybe three people, really cares to read the scanned Reptiles of Iraq stuff. But is that stopping me?

Write under the assumption that people will hate it, and it's more likely to come true. I write under the assumption that my words are heartbreaking works of staggering genius, in the hopes of the opposite. :)

Posted by: Bigwig at May 5, 2005 08:30 AM

Heartbreaking works of a staggering drunk, maybe.


Posted by: Kehaar at May 5, 2005 11:10 AM
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