Posted by Lex, on August 21, 2006
While your correspondent shivers in anticipation of closely reasoned pearls of legal wisdom dropped as un-earned boons into his comments boxes, actual law profs throw the gloves off: Harvard’s Larry Tribe steps down from the ivy-dappled parapets and into the lumpen blogomasses long enough to dash off several hundred thoughts in support of the Diggs-Taylor TSP decision. After a brief, pro forma recitation of the decision’s manifest deficiencies, Mr. Tribe waves away the importance all of that loose talk about legal stuff:
But as legal academics many of us — and I don’t exclude myself from this observation — sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.
Hint to those who wonder what the rest of us are on about when we bewail the actions of “activist” judges: It’s exactly this kind of thinking that gives us the willies. Deconstructed, what Mr. Tribe – a no doubt brilliant academic whose name has been bruited for a federal judgeship, should ever the right flavor of pol make it to the White House – appears to be saying is that the law process itself is unimportant, except as a way at getting at a pre-determined “correct” decision. No fair.
When a presidential program that wouldn’t have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program’s critics have in fact engineered a statutory “fix” that amounts to little more than a whitewash in the offing — when all these things are true, it’s not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.
Translation: The proles are watching, and worse they’re making their own minds up. Murky it up some. Less rhetoric, more jargon. Make it at least sound plausible.
Look, it’s entirely possible I suppose that courts of appeal and even the Supremes may well end up agreeing one day with Tribe and others that the administration has unwisely arrogated to itself extra-constitutional powers. But from everything I’ve read, you simply don’t get that out of the Diggs-Taylor decision, meaning that this was very much more a political speech than a legal finding and as such represents a kind of results-based over-reach within the judiciary exactly analogous to that presidential excess it proposes to throttle. The problem is that we’ve already got a branch of government whose task it is to operate as a political arm: Congress. The fact that – for now anyway – this particular branch of government is headed in both houses by the President’s political allies is one of those occasional evils of the democratic system, take the good with the bad. Voters – whaddaya gonna do?
In contrast, we’ve come to expect of our federal judiciary that they will, you know: Do that legal stuff that Mr. Tribe so airily dismisses in the name of The Cause. Because if you want to make this political, the difference the President’s actions and Judge Digg-Taylor’s in the case at hand is that the presidential over-reach, if in fact it has been found to occur, was based on the laudable goal of preventing further terror attacks, while the countervailing judicial usurpation of the legal process was aimed merely at stopping the president. It’s hard to polish that turd, and I’m surprised that Mr. Tribe would so publicly and nakedly attempt to do so.
Not surprisingly, UMich’s UW-Madison (oops, thanks Dale) Ann Althouse begs to differ with Tribe, on means at least, if not on ends:
Are you saying that ordinary people who don’t read law reviews and who are trying to understand current events shouldn’t have the benefit of law professors helping them understand an important new case, that we’re distracting them from their proper job of despising the President? You want people to concentrate on the judge’s conclusion and not to question the judge’s reasoning and analysis? To do that is to bow to authority. If that’s what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he’s doing. Why shouldn’t people accept that “important conclusion” and leave it for the experts to hash out the details in law review articles?
I do love a good legal dust-up.