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ABA Gives Wallace 'Not Qualified' Rating, Stiffs Spector
July 26, 2006 10:33 AM   Subscribe

Looks like the battle over Bush's judicial nominations may be back on. In February, Bush nominated Michael B. Wallace to a seat on the Fifth Circuit. Not long after, the ABA Standing Committee on Federal Judiciary, which evaluates the professional qualifications of all nominees for the federal bench, gave Wallace a 'not qualified' rating. With that rating, Wallace joins company with other similarly unqualified judicial nominees such Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson III. [more inside]
posted by monju_bosatsu (70 comments total) 2 users marked this as a favorite

 
In June, Sen. Arlen Spector, the head of the Senate Judiciary Committee, requested that the ABA "share with the Committee without delay the report on which its rating is based." The ABA declined to share the report, and also missed the 48-hour deadline for submitting testimony in advance of Wallace's nomination hearing, then scheduled for July 17. It appears that Wallace's hearing has been rescheduled for August 1. Needless to say, many conservatives aren't very happy with the ABA, particularly given the political baggage between Wallace and the current ABA leadership. Moreover, Wallace isn't the only recent nominee to run into trouble with the ABA ratings process.
posted by monju_bosatsu at 10:34 AM on July 26, 2006


Bush: Also 'not qualified.'
posted by It's Raining Florence Henderson at 10:40 AM on July 26, 2006


Only the Federalist Society is qualified to vet Dear Leader's nominations to the bench.

How dare the ABA to presume they should perform such a function without prior approval!
posted by nofundy at 10:41 AM on July 26, 2006 [1 favorite]


I always hear rumblings of the ABA having a "liberal bias", but didn't they just recently give Justice Roberts an excellent ("well-qualified") review during his nomination hearings — even over vociferous objections from the left?
posted by Blazecock Pileon at 10:52 AM on July 26, 2006


GYOB
posted by Unregistered User at 10:53 AM on July 26, 2006


Get Your Own Bar Association?
posted by joe lisboa at 11:00 AM on July 26, 2006


monju_bosatsu: thank you for this post and the links.

I tend to find Wallace to be a poor pick for the 5th Circuit like Miers. I'm not sold on that view, but from what I read about him initially, I think there are better options out there.

I think Bush has nominated some excellent people for the bench. I'm pretty sure this is one of them. And, since that is the Circuit in which I pratice, I'd not sure he would be my pick to argue a case before.

But thanks for the varied and balanced links so I can learn more about him.

(I also appreciate the reminderer that some of our most esteemed jurists [Posner, Easterbrook, Wilkinson] also foolishly recieved such a rating).
posted by dios at 11:00 AM on July 26, 2006


Why the GYOB call out? I don't see excessive editorializing in the FPP.
posted by justkevin at 11:04 AM on July 26, 2006


I don't think the GYOB was about the editorializing, it was about the narrowness of interest.

The NYTimes article ("similarly unqualified") had some claims about the bias of the ABA that seemed sort of egotistical and unquestioned and dubious. Then I looked at the byline.
posted by fleacircus at 11:10 AM on July 26, 2006


Posner does seem somewhat clueless in terms of general knowledge: The political source of the war on drugs is mysterious if, as I am inclined to believe, there is a legal substitute for every one of the illegal drugs: selective serotonin uptake reinhibitors (e.g., Prozac, Paxil, Zoloft) and other antidepressive drugs for cocaine, liquor and tranquillizers for heroin, cigarettes for marijuana, caffeine and steroids for ?uppers.? Obviously these are not perfect substitutes; and some of the illegal drugs may be more potent or addictive or physically or psychologically injurious than the legal ones. But it is apparent that our society has no general policy against the consumption of mind-altering substances, and there seems to be a certain arbitrariness in the choice of the subset to prohibit

Prozac is a substitute for cocaine? Tobacco for marijuana?!? Even with the disclaimer later on, where does the pot = cigs come from ?!
posted by daksya at 11:20 AM on July 26, 2006 [1 favorite]


I'll have whatever cigs Posner is smoking, right after I win my new pair of lungs on ebay.
posted by joe lisboa at 11:31 AM on July 26, 2006


Regarding the GYOB snark: I find the law related posts by monju_bosatsu and dios, whether they are FPP or comments, to be exceedingly interesting and even best of the web. Sure, that's subjective, but by the standard which many other posts that remain have been judged, most of these posts are outstounding. Yes, outstounding.

Shorter self: suck it, hater.
posted by sequential at 11:31 AM on July 26, 2006 [1 favorite]


I love reading Ed Whelan - he's the judicial version of Ed Anger
posted by nightwood at 11:48 AM on July 26, 2006


daksya, I'm willing to overlook the analogies (which, as you indicate, are tenuous, at best), since the queston he's asking -- what makes some mind-altering and addictive substances legal and others not -- is such an excellent one.

Posner's also a true legal mind -- the type this country used to have in spades, but is currently in such short supply.
posted by pardonyou? at 11:58 AM on July 26, 2006


Meh. This is boring compared with Bush putting Bolton up for nomination again.
posted by bardic at 12:16 PM on July 26, 2006


fleacircus- it's an op-ed, not an article. A point of view is sort of the name of the game in an op-ed, you know.

monju, it's an interesting post, but I would have loved more info about what the ABA has said in the past about their ratings and the reasoning behind them.

Certainly having attended a top 10 law school shouldn't be a key consideration, as John Lott implies. Ann Coulter, for example.
posted by miss tea at 12:17 PM on July 26, 2006


daksya -- well, he's naive, but his point is sound-- that drug laws are arbitrary.
posted by empath at 12:34 PM on July 26, 2006


fleacircus, yeah. It's a poorly researched and poorly written article. Its basic claim is that the ABA is biased simply because Republican nominees get lower ABA ratings. A slight bit of rigor in the analysis perhaps might have made things more interesting.

When was the last time a Democrat nominated somebody like Harriet Miers?
posted by dsword at 12:40 PM on July 26, 2006


Forget Democrats... when's the last time a Republican before Bush, Jr., nominated someone like Miers?
posted by the_savage_mind at 1:22 PM on July 26, 2006


Posner's an interesting, if bombastic, public intellectual, but he's no legal mind. He regularly misapplies Cosean bargaining, for instance, and just as regularly ignores stare decisis in favor of whim or theoretical chutzpah. Having reasons isn't the same as having good reasons.
posted by anotherpanacea at 2:14 PM on July 26, 2006


but he's no legal mind.
posted by anotherpanacea at 4:14 PM CST on July 26


Wow. Can you even grasp the sheer enormity of such hubristic arrogance?

Posner is no legal mind? Only a misguided fool or complete jackass would make such a objectively absurd statement.
posted by dios at 2:21 PM on July 26, 2006


Eh? I was responding to this: "Posner's also a true legal mind -- the type this country used to have in spades, but is currently in such short supply."

Of course the guy can parse a statute. But he's no Cardozo or Holmes.
posted by anotherpanacea at 2:27 PM on July 26, 2006


Let me flesh that out a bit: Posner is, unquestionably, one of the top 10 or so influential jurist and legal theorist of the 20th century.

There are many people who disagree with his Law and Economics view on things and there are certainly areas where one can reasonably disagree with an opinion he has written or a legal conclusion he draws.

But mere disagreement does not indicate an utter lack of competence in the person with whom you are disagreeing. I take it from anotherpanecea's statement that he disagrees with conclusions that Posner draws. However, in stating that, he makes the absurd statement that Posner "has no legal mind."

The sheer arrogance of that statement is astounding. The man occupies an elevated position both in jurisprudence and in legal theory. He might be wrong, but it is nonsense on stilts to suggest that he reached that position while possessing "no legal mind."

It is almost as if someone would say "Micheal Jordan has no basketball skills because I wouldn't have taken that shot" or "Coltrane has no musical skills because I would have played a note differently there." It's embarassing.
posted by dios at 2:32 PM on July 26, 2006


Of course the guy can parse a statute. But he's no Cardozo or Holmes.
posted by anotherpanacea at 4:27 PM CST on July 26


Because he is no Cardozo or Holmes, he "is no legal mind"?
posted by dios at 2:33 PM on July 26, 2006


My apologies: in the prior post I used the possessory form "has" when I meant "is." It was a typo that doesn't alter the substance of my remarks, but I don't want to be accused of misrepresenting anotherpancea's statement.
posted by dios at 2:35 PM on July 26, 2006


Posner's had his moments as a legal theorist, buy my real beef with him is that he can't fucking spell.
posted by bardic at 2:54 PM on July 26, 2006


I also think Posner is a moron, from his posts on Lessig's blog when he guest-blogged there years ago.
posted by blasdelf at 2:54 PM on July 26, 2006


Well, no. He's no legal mind because of things like this. We can talk about his badly decided cases some other time. I don't feel like westlaw right now.
posted by anotherpanacea at 3:06 PM on July 26, 2006


By the way, the equation of power with brilliance (or position with expertise) is the primary reason that the conservative legal revolution will fail. The law is not so easily manipulated as the Federalist Society would like. A century from now, people who are not overawed by Posner's position and power will read his decisions and chuckle. Not because they are badly decided, but because they are (often) badly reasoned.
posted by anotherpanacea at 3:10 PM on July 26, 2006


Uh, OK, dude. What "position and power" does Posner hold other than as a judge on the Seventh Circuit (which, by itself, makes him only one of about 180)? His influence goes far beyond his "position and power," and is attributable directly to his reasoning ability -- his legal mind. I think you're making the mistake of confusing your fundamental disagreement with his rulings with lack of intellectual strength.
posted by pardonyou? at 3:22 PM on July 26, 2006


Give me a break. Again, you can't seem to get beyond the inspid argument of "disagreement = lack of comptence."

It would be great if someone making such an absurd claim as you are making would put forth some reasoning to indicate why he is "no legal mind" beyond mere objection to particular viewpoints.

I put this to you because this sort of bullshit passes too frequently here at Metafilter where arrogant pricks take the position of ideological facists and argue that "because this person disagrees with me, they are complete morons."

I don't need to prove my case that he is a legal mind. His position within the legal community and legal academia make the prima facie case; it is to people make asinine statements like you make to refute them. (Would it be too embarrasing to link to the same periodical you linked to which has a list entited "The Top 20 Legal Thinkers" that includes the man you just said "is no legal mind." Or, one could check the preferred Wiki page on Posner which includes such statements as "The New York Times called him "one of the most important antitrust scholars of the past half-century"---no legal mind, indeed.)

And, I would add, your little diatribe about the Federalist society and "conservative legal revolution" doesn't advance your case at all. In fact, it shows that your vapid characterizations are ideologically driven as opposed to objective evaluation.
posted by dios at 3:25 PM on July 26, 2006


(The Legal Affairs link was left off. It is here---the same periodical which anotherpancea referenced when showing evidence that Posner is "no legal mind.")
posted by dios at 3:27 PM on July 26, 2006


Well, the judgeship certainly contributes to his hubristic arrogance, but I was thinking of his position at the University of Chicago. Combined with his judgeship, that position means that people will publish his books and essays even if they suck. Believe me, it happens to plenty of people I agree with, too: a few good ideas lead to success, which leads to publication pressure, which leads to soap-boxing, which leads to speaking appearances, which lead to badly-thought-out arguments, which lead to poor scholarship.

Good legal minds: Cass Sunstein, Hart and Dworkin, heck, even Catherine Mackinnon.

Kiss kiss dios.
posted by anotherpanacea at 3:31 PM on July 26, 2006


So, in other words, you aren't even going to attempt to defend your earlier statement?

How's about you just admit you are talking out of your ass and attempting to reflect your ideological bias as opposed to any objective evaluation of the man? It would be a first, I'm sure.
posted by dios at 3:34 PM on July 26, 2006


Posner is, unquestionably, one of the top 10 or so influential jurist and legal theorist of the 20th century.

That is arguable but he is most certainly one of the 546 most influential public intellectuals. We know this because he made a list and, guess what, he's on it!

The question about Posner is not his intellect -- it is the quality of his reasoning and judgement that are suspect.
posted by JackFlash at 3:40 PM on July 26, 2006


dios... I don't bring my A quality game to metafilter. That'd be silly. But here's a friend trashing Posner's arguments from that Legal Affairs article.
posted by anotherpanacea at 3:45 PM on July 26, 2006


dios... I don't bring my A quality game to metafilter. That'd be silly. But here's a friend trashing Posner's arguments from that Legal Affairs article.
posted by anotherpanacea at 5:45 PM CST on July 26


My apologies. As you are someone who identifies on his profile under occupation as a "teacher/scholar/critic," my assumption was that you might have been inclined to not make broad and silly assertions unless you could attempt to argue them beyond merely pointing to something "your friend" did. I would note, agian, that by pointing to "your friend" wherein he disagrees Posner still doesn't bridge the gap that I have said multiple times that you fail to seem to be willing to address: disagreement does not suggest incompetence.

I think Larry Tribe is wrong on a whole lot of things, but I would never be so arrogantly foolish to suggest he is not a tremendous legal mind. Because I understand, the fact that I disagree in no way effects the ability of Tribe. It is a mere disagreement. As a general rule, it tends to be a good idea not to call people stupid or incompetent when any objective observer wouldn't place you in same universe of ability as the person you have questioned. As I said, what kind of hubristic arrogance would lead someone to making such a claim?
posted by dios at 3:53 PM on July 26, 2006


Look, buddy, I said he was no legal mind. I'll take that back: he's no great legal mind. Does that help? I'm guessing not.

You haven't made any arguments, either, except from authority: important people like him. Great! What does that prove? How about this: does he respect the law? Does he respect tradition? I don't always disagree with his findings, I disagree with his arguments, with his reasoning. Unless you're a hippy relativist, that means that one of us is wrong. You can't just go around asserting things and make them be so, and sadly, that's what Posner does all too often. Truth is too obstreperous, and reason has stringent requirements for its use. Posner should spend less time being celebrity and try thinking for a living.
posted by anotherpanacea at 4:06 PM on July 26, 2006


Your favorite Jurist sux.

Seriously, this argument reminds me of the "Most Influential Albums" thread a few days back. You seem to be arguing different things. dios, you seem to be arguing that Posner is important and influential. anotherpanacea, you seem to be arguing that he is, nevertheless, not necessarily great. Perhaps you are both right.
posted by It's Raining Florence Henderson at 4:08 PM on July 26, 2006


On the other hand, if you think Lawrence Tribe is some sort of hot stuff, your standards are pretty low. Ok, I'll give in: Posner's at about the level of Tribe. Probably better, actually.
posted by anotherpanacea at 4:12 PM on July 26, 2006


Dios -- I agree with your pushback w/r/t anotherpanacea, but you're losing points for the higher level of invective in your comments than his. He's being pretty civil, really, in the face of a bunch of insults from you.

From firsthand experience litigating appeals in front of Posner, the man is brilliant but too often uses cases as vehicles to make grand theoretical points while losing sight of the more concrete concerns of the litigants. This leads him to make decisions on the basis of issues that were never briefed or argued below. This is sometimes fine, if counsel have done a bad job spotting the key issues, but can also be bad if it means that 5 years of litigation are tossed aside because of an obscure economic issue tangentially related to the case.
posted by Mid at 4:20 PM on July 26, 2006


dios, you're conflating disrespect with disagreement!

I actually agree with Posner on most of the issues, but think he is a moron, and really wish he wasn't on my side.
posted by blasdelf at 4:40 PM on July 26, 2006


allow me to cite the great legal scholar richard posner:

"A] successful academic may be able to use his success to reach the general public on matters about which he is an idiot. It doesn't help that successful people tend to exaggerate their versatility; abnormal self- confidence is a frequent cause and almost invariable effect of great success."

of course, he doesn't think he's talking about himself. but he is.
posted by Hat Maui at 6:01 PM on July 26, 2006


of course, he doesn't think he's talking about himself. but he is.

Oh, trust me, he knows he's talking about himself.
posted by monju_bosatsu at 6:08 PM on July 26, 2006


trust me

so is it fair to say that your characterization of posner w/r/t this quote is that he himself is saying that he frequently talks out of his ass?
posted by Hat Maui at 6:24 PM on July 26, 2006


Yes, that's accurate.
posted by monju_bosatsu at 6:30 PM on July 26, 2006


so he's more of a great legal ass than a great legal mind? or have i gone too far?
posted by Hat Maui at 6:41 PM on July 26, 2006


Well, he's both, I think. He's supremely qualified to speak on matters within his expertise, but those qualifications decline as the topic moves away from those in which he is expert; like most of us, I expect. He's aware of this fact, of course, but he makes judgments based on the information available to him. One of the things I like about him is that he's willing to change his mind when new information or methodologies become available to him. Don't expect him to keep his mouth shut just because he doesn't have all the information, though.
posted by monju_bosatsu at 6:48 PM on July 26, 2006


So, in other words, you aren't even going to attempt to defend your earlier statement?

How's about you just admit you are talking out of your ass and attempting to reflect your ideological bias as opposed to any objective evaluation of the man? It would be a first, I'm sure.
posted by dios at 6:34 PM EST on July 26 [+fave] [!]


I love it when dios describes himself.
posted by juiceCake at 7:40 PM on July 26, 2006


How about this: does he respect the law? Does he respect tradition?

Umm... Dworkin? Dworkin is, I freely admit, a great legal mind, but I don't think that you can call the great apologist for the Warren Court revolution a respecter of "tradition." Hercules doesn't respect tradition, he gets the "right" answer, right?

I think you're making the common mistake of confusing "laws that I like" with "the law" and tradition. Scalia is traditional, Dworkin is not.
posted by gd779 at 8:48 PM on July 26, 2006


I admit that there is a shallow sense in which Hercules respects tradition: that's the "fit" and "justification" part of Dworkin's interpretative strategy. But that would be, I think, a very shallow reading of Dworkin, given the massive coincidence that the Warrent Court just happened to be the only court in American history to get every single answer exactly right. In fact, this distinction between what Dworkin says and why he says it is precisely what I mean by a "great" legal mind; Dworkin has the three traits that lawyers need in spades: sheer analytical horsepower, creativity, and duplicity. And that is what I was referring to when I objected that Dworkin was no great lover of tradition - unless, of course, your timeframe for "tradition" is rather short.
posted by gd779 at 8:55 PM on July 26, 2006


By tradition I meant the innovative approach to precedent that characterizes the best legal minds. I was thinking of the traditional mode of common law development, where you show a rule developing out of cases, rather than inventing it from whole cloth. Call it duplicity if you must (though I recommend a trip through Plato's Gorgias and Laws for people who think lawyering is just rhetoric and sophistry) but I'd prefer to think of it as the application of principles to cases, where many principles are unclear and some of them conflict.

The problem is that some principles aren't just contentious, they threaten the stability of the rest. You can't legalize torture without wreaking havoc on the system of justifications for the tort system and the institutions of criminal investigation. You can't simply inject efficiency into the network of principles and precedents; you have to build it slowly enough so as not to disturb the web of reason-giving that separates law from fiat. Otherwise, you run into the whole 'common law is a dog's law' conundrum: no predictability, just some guy's back-of-the-napkin calculations or some politician's half-assed ratiocination.
posted by anotherpanacea at 6:08 AM on July 27, 2006


Call it duplicity if you must (though I recommend a trip through Plato's Gorgias and Laws for people who think lawyering is just rhetoric and sophistry) but I'd prefer to think of it as the application of principles to cases, where many principles are unclear and some of them conflict.

I'll see your Plato and raise you some Stanley Fish: The Trouble With Principle.

You see, the "reason-giving" that you extol: does it actually change the fundamental character of law, or does it merely disguise law's character for easier public consumption? If the job of the jurist is to change the law, but to do it slowly and subtlely, so that the change is not commonly noticed, then law is just a sophisticated and politically-aware gunman, who has pulled off the great trick of making people think that he has special normative authority that extends beyond the (nominal?) authority to make law which was conferred upon him as a common-law judge.

Thus, I actually find Posner's flat-out honesty regarding the basis of his legal reasoning to be refreshing, and I prefer it to the deception of judges who hide their preferences behind the self-constructed facade of "tradition" and legal necessity. (With the caveat noted by Mid above). Don't forget: Posner gives reasons for his decisions. Like all judges, he has opinions, and he cites cases in support of his opinions, and he tries to follow precedent when it is relatively clear and appropriately applicable to the facts at hand. But where another judge, say Dworkin, in a case where the cases or principles at issue conflict, would be at great pains to disguise his outcome-oriented reasoning with the language of precedent and tradition, Posner's opinions are a relatively straightforward explanation of why he felt he had to decide as he did. He may not always get it right, but he always tries, I think, to transparently explain the basis of his thinking. That, I think, is a greater judicial virtue than Hercules ever possessed.

Of course, perhaps I find Posner's honesty about his reasons to be refreshing because I, like Hart and the English generally, have no problem with the idea that law, at some point, "runs out," and that judges must then act as a legislator. I do not harbor the liberal/American delusion that all of my political preferences are actually commanded by law and the Constitution.

All of which takes us far afield from the main point, of course. But it does explain, I hope, why I think that an unhealthy, dishonest, and exclusive fidelity to the traditional modes of American legal reasoning are not a strict requirement for one to be called a "great legal mind."
posted by gd779 at 10:07 AM on July 27, 2006 [1 favorite]


So, now that the Posner derail (or interesting sidetrack if you will) is finished, how about them Bush nominees?
Woohoo!
Up or down votes, no debates!
Miers who?
Will cat-killer Frist back Bush or go for the "I wanna be president" gusto?
Damn activist judges! (nearly all of whom are appointed by GOP presidents) They must gotten rid of!
posted by nofundy at 11:35 AM on July 27, 2006


If we reduce the conversation to partisanship, then yes, anyone who moves the mainstream is a brilliant theorist. This whole 'strong poet' movement in contemporary intellectual life is pretty disastrous, though, even as it is seductive. If we hope for something more than naked interest, like excellence, justice, or truth, than we will be disappointed by thinkers like Fish and Posner.

They are both, I should point out, very much of a piece: neopragmatists who take their role as famous intellectuals as license to think badly in public. In other words, they are sophists. But a great legal mind finds a way to preserve the tradition even as she alters outcomes to suit the novel requirements of technology and changing circumstance. I think, perhaps, that I should start our proposed Plato readings with the Minos: "Law wants to be the discovery of what is."

But I suppose we've reached the boring agree-to-disagree stage, so I should leave off and let people argue about filibusters and things.
posted by anotherpanacea at 12:45 PM on July 27, 2006


They are both, I should point out, very much of a piece: neopragmatists who take their role as famous intellectuals as license to think badly in public. In other words, they are sophists.

This is amusing, because I think precisely the opposite: those who mask their ideology by pretending that "the law" is a concrete thing, which has always mandated a given legal result, when in fact they actually believe no such thing, and intend from the outset to move or change the law, all the while pretending that they have made no change at all: they are the sophists. They use rhetoric to deceive their audience about their intentions and about the reasoning and beliefs that informed their decision.

People like Posner and Fish are at least honest and up-front about what they are doing, about what they think is possible and what they think is impossible. They may in fact be quite wrong, but they are at least transparent.

But Dworkin, and most contemporary lawyers: even when they are not deliberately dishonest, exhibit what Duncan Kennedy called "bad faith."

But I have enjoyed this discussion, and it's always nice to meet an intellectual who still believes that abstract concepts like "excellence" actually exist in some objective form. (Judging from your frequent quotations, perhaps you are some kind of platonist? I hope so.)
posted by gd779 at 2:03 PM on July 27, 2006


"Pretending that "the law" is a concrete thing, which has always mandated a given legal result" would indeed be pretty bad. A jurist's goal should be to reach the right result for his time and place, and you can't do that without both a love of the tradition and a willingness to add to it. Scalia, with his faux traditionalism, is really a romantic, caught up in a nostalgia for a lost age that never was. (Though I like to think that in his case, this is just an act. He seems able to step out of his judicial persona when needed.)

I dispute that Dworkin is such a pretender, but I may be wrong about his intentions. Indeed, I'm less interested in his occasional pieces (the whole NYRoB beat) than his big treatises, so this may be the reason for our disagreement.

Posner and Fish are transparent, I'll give you that, (unless Fish is a crypto-fascist, which I sometimes wonder.) In an age where ideologists can never remember what's true and what's the party line, this makes them seem clear-sighted. But there are two ways to go wrong: most people set the right goal, or simply no goal, and fail to achieve it. The Posners and Fishs of the world set all their strength to surmounting unhealthy, undesirable obstacles. I'm not sure that's worthy of celebration. They seem to suffer from a stupidity that is only possible amongst very well-educated people: knowing much, they think they must know all. I believe this is sometimes called 'hubris.'
posted by anotherpanacea at 2:31 PM on July 27, 2006


"Pretending that "the law" is a concrete thing, which has always mandated a given legal result" would indeed be pretty bad.

That's Dworkin's whole point, isn't it? That there is a single, uniquely correct answer to every legal question, and that Hercules can find it, if only in principle? For someone who disparages the pragmatists, you sure sound like Holmes to me. Dworkin, on the other hand, facially disclaims pragmatism.

(Though I maintain, as do many others, that his apparently neutral arguments were designed or "rigged" from the outset to function solely as a justification of the Warren Court against the attempted retrenchment of conservatives. This is to his credit, rather than criticism, as it would be to the credit of any legal advocate.)

The Posners and Fishs of the world set all their strength to surmounting unhealthy, undesirable obstacles.

What iss unhealthy about their approach? Posner does exactly what every other judge does, and in fact he does what you urge him to do: he tries to find "the right result for his time and place" as best as he sees it. You may not like law and econ, but that's what he thinks is the right result for his time and place. The only difference is, he's more transparent about his desire to move and change the law than others are or would be.
posted by gd779 at 4:00 PM on July 27, 2006


In other words, anotherpanacea, I read you as agreeing that judges should move the law to find the "right answer for their time and place." Fair enough. The only remaining questions then become:

1) What direction should we move the law in?

(This is pure politics and "reducing the conversation to partisanship." Posner likes law and econ - you, perhaps, do not. Posner is the judge, so he gets to make the change.)

2) How quickly should we move the law in our preferred direction?

(This is usually just a political calculation as well: how much judicially-imposed change will people tolerate? But there are also "higher" aspects of this question: does the court, as an institution, have the political capital to make this change without undermining judicial credibility, which would hurt everyone? If we make this change, will we undermine people's legitimate expectations, which they relied upon in making their plans, and is that wrong? And so on.)

3) Should we tell people that we're making a change, or should we try to fool them?

And that's it. The substance of our disagreement appears to hinge solely on #3, it seems to me. Dworkin pretends that he's "just being a lawyer" when he lobbies for a judicially-imposed liberal revolution; Posner admits that he's moving the law in a manner informed by law and economics. Dworkin denies, Posner admits - that's it. Right? What am I missing?
posted by gd779 at 4:10 PM on July 27, 2006


By the way, though this is probably clear by now, my own sympathies tend to lie with Hart. The law has a "core" which is relatively clear, in the sense that the interpretive community has established a very broad consensus on what the law clearly means. The law also has a gaps and an unclear periphery, where the appropriate legal rule is uncertain, in the sense that the interpretive community hasn't or wouldn't really come to a clear consensus, either because there are arguments both ways or because the question is one of first impression.

As a positivist, I think that statutes have clear democratic legitimacy. And the common law, in a democratic society, gets its legitimacy from the fact that the legislature could change the rules, if it wanted to. So, given this context, the judge's obligation is clear: he has an obligation to carry out the intention of the legislature (as embodied in either the statute or in the common law). In the core, where everybody agrees on the meaning of "the law," the judge has an obligation to accept the established meaning of the law without change, because that is what the legislature "meant" to codify. In the periphery, where the meaning is unclear, or where there is a gap which no one has ever addressed before, the judge is de facto empowered to act as a legislator herself - and if the actual legislature doesn't like the rule which the judge develops, then it can pass a new law. Thus, the rule of law is preserved, while the twin evils of judicial activisim (e.g., Breyer, Dworkin and Posner) and excess formalism (hardly anybody of note these days, but maaaaaybe Scalia at times) are avoided.
posted by gd779 at 4:22 PM on July 27, 2006


[Sorry, I was away from the computer.] I think with Dworkin we've hit a wall, because I would argue that there is a distinction between the correct principle and the single correct decision. If you look at the Warren Court, their principles -are- right... it's the execution, the policy frameworks that arise around those principles, that are so weak. I think only the worst opponents of Brown dislike the notion of desegregation. Instead, they object to the method, and the locus of action in schools. I tend to side with Hannah Arendt on this, which is to say that I believe it is absurd to ask children to solve racial problems that adults seem unable to tackle. Indeed, Jonathan Kozol, no white supremacist, has shown that educational segregation is greater today than it was in 1954.

In the same vein, as much as I think exclusion is the right approach to Miranda, I wonder about Mapp.... I've seen first hand the ways that officers have become fourth amendment specialists in order to sidestep exclusion problems with illegal searches: they lie with great technical proficiency. This is much worse for criminal justice institutions than the civil suits would be. Yet at the same time, there was the aura of the police state in the air... perhaps we can't adequately appreciate the time and place in which Mapp was decided.

So rectitude w/r/t "time and place" obviously requires more than just right principle, and it's execution where I think the Warren Court generally goes wrong. Which doesn't mean that Dworkin's not right about principles trumping rules, for instance. (I purposely paired Hart and Dworkin, since I think they really just complete each other.)

You've written so much in my absence that I can't respond to it all, but I think we'd have to spend some time on Gadamer and the hermeteuticists to work out these problems. I've said that the task of interpretation requires both a love of the tradition and the courage to add to it, and I'll stand by that formulation. I understand why you wish to twist that into the mechanics of 'moving the law,' but I wish you wouldn't. That you're a Hartian explains some of the problem: you've rejected the 'spirit of the laws' that drive most civic republicans, including the founders. We needn't agree that there are only lines and spaces, rules and lacunae. It may be that tradition can guide us on the thin ice between the black letter law, but only if we're willing to be modest with regards to it. Like Rawls, Kaldor and Hicks throw some equations at the problem and think they can replace history. I really don't think so, and you'll accuse me of hiding my agenda, but I actually don't have one. As much as possible, I seek only to advance the good and the just against partisans of the bad and the unjust.

I definitely reject the very notion of "activism" as you've described it. A judge doesn't legislate! She judges. She applies canons of construction, compares statutes with constitutions, and attempts to interpret the common law. The whole notion that her work in penumbral areas of the law makes her a legislator is dangerous. It's still just a case she is deciding, not a statute; all the rest is dicta. When the Supremes hand down rules or set standards, in part they're responding to the recent history that has granted them this pseudo-legislative power. But in part they're simply enunciating principles for the lower courts to follow, using words with few syllables and as little nuance as possible. The lower courts include some pretty stupid and unjust judges who need everything spelled out for them in crayon.

I understand the impulse to let smart or strong people perform the tough labor of legislating. The Congress would love nothing more than to save itself the trouble of lawmaking (more time for campaigning, I suppose.) Thirty years ago they hoped the Judiciary would handle it for them; now they look to the Executive. Democracy's tough, I guess. For me, that's its charm.
posted by anotherpanacea at 9:35 AM on July 28, 2006


I really don't think so, and you'll accuse me of hiding my agenda, but I actually don't have one. As much as possible, I seek only to advance the good and the just against partisans of the bad and the unjust.

Ha! Thank you. I don't know if that's irony or sincerity, but I appreciate it either way.

If you are sincere, then I would say this: Good for you! If only all of our judges would defend the good and the just against the partisans of the bad and the unjust. Except, wait a minute, they do! And yet we still have conflict. How very odd.

Could it be that abstractions like "good" and "just" cloak substantive opinions that not everyone would agree are "good" and "just?"

And so I would say, with Fish, that principles don't exist. What we think of as "principles" are too abstract to usefully resolve disputes, and when we fill them in and make them concrete enough to resolve a dispute, then they have lost the very abstractness that gave them universal appeal. Everyone seeks the "just" - but not everyone agrees that affirmative action is just. So principles like "justice" and "equality" (see Peter Westen's famous article, "The Empty Idea of Equality" in the Harvard Law Review) don't really do any useful work.

The lower courts include some pretty stupid and unjust judges who need everything spelled out for them in crayon.

Ah! I see. And now your arguments, including your embrace of Dworkin, make a good deal of sense. I'm glad that you don't have an agenda, here, or else I might be worried.

I definitely reject the very notion of "activism" as you've described it. A judge doesn't legislate! She judges.

That is not quite what I meant to say. All judges must legislate from time to time. An activist judge is a judge who legislates when that is inappropriate to her role: she is a judge who legislates in the core.
posted by gd779 at 11:43 AM on July 28, 2006


To be clear, what I mean to say is that all judges must make new rules and develop "new" law from time to time. I call that legislating, but whether you call that judging or legislating makes no difference to me. Where we differ, it seems, is that you think that judges should make new law whenever they think that the new law is more appropriate for their unique time and place than the old law was. I, on the other hand, think that democracy was invented precisely to take those kind of decisions out of the hands of individual people and put it in the hands of the people as a whole, so I insist that judges restrict their law-making to the periphery, and leave the quetion of what is appropriate for this time and place for the legislature whenever that is practical. (By which I mean, wherever the legislature has already laid down a rule, either by passing a statute with a clear core of meaning or by declining to overrule a common-law rule possessing a clear core of meaning).
posted by gd779 at 11:54 AM on July 28, 2006


I don't know if that's irony or sincerity, but I appreciate it either way.

In this case, it's both. (How can we -not- be ironic on the internet?) I certainly think that it's a bad idea to reject the good and the just simply because they might be a little hard to determine. And, like it or not, arguments regarding efficiency (like Posner's argument about unconscionable contracts or the 'costs' of educating the electorate) are more concerned with wealth than with justice or principle. I may not know what the good is, but I do know it's often different from wealth. Aristotle argues wealth can destroy a democracy, and should be strictly regulated so as to preserve the polis's arete, its excellence. But what does he know, right? Adam Smith disproved that, eh?

Could it be that abstractions like "good" and "just" cloak substantive opinions that not everyone would agree are "good" and "just?"

Sure, it could be. Do they have to? Is it possible those in disagreement are wrong? Why does classical liberalism always get translated into this absurd relativism? Moreover, why are you so sure that they're 'cloaking' someting? Is everyone hiding a secret agenda? I'll say "No," but I'm obviously plotting a nefarious scheme of some sort.

The problem with partisans (and you seem to be one, if only a partisan for partisanship) is that they evaluate all decisions based on consequences. From a partisan perspective, everyone else is partisan too, since they inevitably act in ways that further one or another cause, or worse, act in unknowing complicity. We can't really have a conversation if you're not willing to forgo the consequentialist perspective, at least for a moment: we're stuck debating and winning points. I'm also a bit disappointed that you spent more time attacking my snark than my arguments; I thought we were doing well there for a bit. Is it really that hard to imagine a world where principles and reasons are more important than results and outcomes?

Anyway, you've articulated Hart's Concept of Law quite adequately, so I'm satisfied that you're at least half-right. :-) I'll leave you with a last recommendation: Montesquieu's Spirit of the Laws. The original Federalists couldn't get enough of that French Fry.
posted by anotherpanacea at 1:45 PM on July 28, 2006


I'm also a bit disappointed that you spent more time attacking my snark than my arguments

I meant my snark more in the way of good-natured teasing, which is designed to make a fundamental point. Which is that, despite your exhortation to believe in "principles" and the "just," you haven't told me what you believe in. You've told me what you believe about a few specific Warren Court decisions, but that's it.

Sure, it could be. Do they have to? Is it possible those in disagreement are wrong?

Yes and yes, respectively. When I say that your abstractions "cloak" a substantive vision of the good, I don't mean to imply a deliberately deceptive motive. I simply mean that the abstraction obscures what is "really" there. Abstractions are cognitively empty concepts, that convey no real meaning in and of themselves, at least not the sort of meaning that can be put to use resolving a dispute. They're not "thick" enough for that.

And that tells you why I don't think words like "just" have any meaning in this context. This explains my position, and if I haven't attacked your position, it's because I'm not sure you've explained for me. (At the least, I didn't understand it). You make very broad, abstract statements of intent, but you never explain how those statements can have independent meaning which is thick enough to be judicially applied.

And by the way, I'm not a consequentialist. A consequentialist wouldn't ignore Hart and democratic legitimacy and tell judges to do what he wants them to do. My "principle" if you will is that democratic legitimacy is generally more important than my particular consequentialist preferences, and that judges should abide by the core of the law even when doing so leads to a consequence that I do not prefer.

The bottom line, I suppose, is this: I've explained why I think principles don't exist, and why abstractions don't exist, and why judges can't actually use things that don't exist to resolve disputes, even when they think that's what they're doing. So your arguments literally make no sense to me; you're using words in ways that I literally can't comprehend what you mean. You'll have to explain why you think concepts like "justice" exist and are helpful in resolving disputes before I can meaningfully engage you regarding whether (and when) a court could resort to "justice" in resolving a case.

Or have I misunderstood your basic point altogether?
posted by gd779 at 2:09 PM on July 28, 2006


And, by the way, if you continue to advocate the jurisprudence of Blackstone and early America, I will point you to Law's Quandary (by Steven Smith) which argues that, in fact, this was the only American school of jurisprudence which was internally coherent. But it purchased this coherence because it was premised explicitly on theistic metaphysics. Is that what you are advocating? Because I don't think you can make sense out of that strain of legal interpretation without returning to explicitly theistic premises. You'd have to accept Lon Fuller and natural law, at the least, I would think.
posted by gd779 at 2:12 PM on July 28, 2006


"A consequentialist wouldn't... would..."
posted by gd779 at 2:13 PM on July 28, 2006


So your arguments literally make no sense to me; you're using words in ways that I literally can't comprehend what you mean. You'll have to explain why you think concepts like "justice" exist and are helpful in resolving disputes before I can meaningfully engage you regarding whether (and when) a court could resort to "justice" in resolving a case.

I understand the disagreement, though I must say that we're well outside of what I had thought possible on metafilter so I'm not disappointed by this failure of sensus communis. This sort of metaphysics is difficult to pull off in a classroom of graduate students, let alone on the internet. And I did not mean to say that one could perform the task of a judge by citing only truth, justice, and the american way, even though I would hope that we would respect facts, fairness, and traditions. I suspect that principles, along with better math, are good ways to attack some aspects of Law and Economics, for instance, but I think Posner is weaker in this respect than someone like Easterbrook who focuses on business and doesn't try to import the model onto infertile ground. This is Dworkin's approach, and I think it's the right one. Beyond that? I'll stick with comparing cases to statutes, statutes to constitutions, and constitutions to treaties: in the lacunae, we try to be impartial and do our best.

Here's my question to strict legitimists: Did Carl Schmidt have a responsibility to decide against Hitler in the "Night of the Long Knives?" Is a democratically elected dictator judicially defensible? Can a democratic polity strips its minorities of citizenship and then enslave or kill them? At what point does a democracy cease to be democratic enough? And, if you don't believe in principles, what justifies democracy?

But these are side issues, and they have that nasty Godwinism working against them. I think that the politics in American jurisprudence right now eliminate some of the most exciting possibilities in legal theory, as evidenced by Stephen Smith's book. (I haven't read it yet, but I've read Scalia's article about it.) The sense I get from other reviewers is that he depends on a kind of comparative metaphysics: how can we have mens rea without believing in the soul, that sort of thing. The Thomist tradition of Aristotelian interpretation isn't the only one, of course, and in my professional life I prefer my Aristotle straight-up, no chaser, since Aquinas misapprehends the summum bonum as a creator, a first cause, rather than the first mover (that's what the Good, which moves us through desire, would be.) But this is another problem it would be difficult to address on metafilter, especially since I haven't read Smith's book!

Thanks for the discussion. I enjoyed it, especially after the initial reactions I seemed to incite!
posted by anotherpanacea at 3:31 PM on July 28, 2006


Here's my question to strict legitimists: Did Carl Schmidt have a responsibility to decide against Hitler in the "Night of the Long Knives?"

I don't dispute that there comes a point where a given outcome is going to be more important to a given judge than democracy or democratic legitimacy. I find myself among those who think that, when push comes to shove, liberal democracy can sometimes only be defended by abandoning the principles of liberal democracy and fighting the partisan fight (on behalf of liberalism) to the death. Everyone has a slightly different hierarchy of values, but I would hope that we can all agree that these questions are not at issue in contemporary America.
posted by gd779 at 8:09 AM on July 29, 2006


if you don't believe in principles, what justifies democracy?

To be clear, I don't believe in principles when they are presented as universal, absolute, and abstract. When a principle, or perhaps we should call it a "value," gets thick enough and specific enough to resolve disputes, then I can tell you whether or not I think it is important, and how important it is. I think that democratic legitimacy, as I have described it above, is normatively valuable because it is the very source of the "rule of law" which allows partisan disputes to be resolved peacefully in a democracy, and I prefer not to see a return to the bloody partisan conflicts of the past. But I have no illusion about the universal nature of this value, and I recognize , with Fish again, that adhering to the principles of liberal democracy requires a sort of doublespeak, and a willingness to supress the beliefs of others where those beliefs which will not submit to the authority of liberalism.

I've enjoyed this conversation as well.
posted by gd779 at 8:16 AM on July 29, 2006


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