Friday, June 13, 2003


Matthew Yglesias Channels Roman Hruska

The superb (and therefore non-mediocre) Matthew Yglesias suggests that we could do with a little more mediocrity among our judges:

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.

Matthew's position has a long and famous history. When Richard Nixon nominated G. Harrold Carswell in 1969 to be a Surpeme Court Justice, many people pointed out Carswell's less than stunning qualifications. Senator Roman Hruska, a conservative politician from Nebraska, attempted to turn this into an asset: "Even if he is mediocre," Hruska contended, "there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Lots of people made fun of Hruska for saying that, and he's gone down in history for being a champion of mediocrity. But Matthew's argument is more serious. What we want on the federal bench above all is good judgment. Good judgment is not the same thing as great legal acuity or legal brilliance. Nevertheless, I would disagree with Matthew that we want boring judges. Some boring judges don't have good judgment, while others do. Judging is not just mechanical application of precedents. It is not simply following the rules laid down. It is an art, and like all arts, is done better by people with talent for it than by people who lack that talent.

Good judging also involves more than the ability to figure out who should win. It also requires the ability to state principled legal conclusions in written form that can be useful to other judges and other actors in the legal system. A judge may recognize that the plaintiff should win in a particular case, but may not be able to articulate the reasons for that conclusion in a way that captures the best legal principle for deciding the case, and that distinguishes other fact situations that seem identical but in fact are not. Judges who cannot perform these tasks well may move the law in the wrong direction. People who have medicore legal minds are usually not as good at articulating the proper grounds for resolution. They often tend to conflate issues or gloss over important distinctions. Law professors tend to think that brilliant legal minds are better at these features of judging than less brilliant legal minds. They are right about that, I think, but there are other important considerations that go into the art of good judging, and as Matthew suggests, we should not assume that law professors are the best at all of the aspects that go into this art.


Bork and Posner

Responding to my suggestion that President Bush should nominate Richard Posner as Chief Justice, Juan Non-Volokh writes:

My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)

Juan is right that Posner is more politically palatable to me than Bork ever was. He is a secular libertarian with a very independent streak, and in the long run, likely to take the law in better directions (from my perspective at any rate) than, say, a dogmatic religious and social conservative would. So Juan is correct that my notion of who is acceptable (given who the President is) cannot be divorced from pragmatic considerations and predictions about what a nominee would likely do once on the bench. In this sense, my criteria of acceptability are multiple, rather than unitary.

But I also think Juan misunderstands the claim I am making about quality. I think he is setting the bar far too low if he thinks that Bork is in the same category as Posner. Posner is not just another smart legal academic. There are plenty of those around. He’s a central figure in several of the most important current debates in legal scholarship all the while holding down a regular job as a federal judge.

Let me be clear: My argument *isn’t* Juan’s argument, that one should support smart academics on the federal bench regardless of their ideology. I don’t believe that for a second. I reject the argument. Very smart academics are a dime a dozen. Some of them will turn out to be good judges, and some of them will turn out to be much less good. My argument is that under the present straitened circumstances, Bush should nominate someone of the very highest quality. As I said in my previous post, “Appointing [Posner] to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect.”

Now when I say very highest quality, I mean very highest quality. Lots of people are smart, and have done impressive things. Not many people can be mentioned in the same breath as Cardozo. I certainly don’t think that Bork can. Indeed, I don’t think that either Scalia or Breyer, two former academics currently on the Supreme Court, can either. Neither of them have achievements even close to Posner’s. Almost by definition, there are very few people of the very highest caliber available in any generation. (By the way, I think it is telling that I think of Bork, Scalia, and Breyer as being former academics. I still think of Posner as being an academic, even though he has been on the federal bench for twenty years.)

I actually don’t think that Bork was an appointment of the very highest quality. Bork is a smart fellow. He was a member of my faculty for many years, and my general (albeit obviously biased) estimation is that the Yale Law School does a pretty good job of judging legal talent. But he is simply not in Posner’s league. No one could have said of Bork in 1987 that he was the most important legal thinker of his generation. Unlike Posner, he essentially gave up academic writing when he joined the D.C. Circuit, and when he was at Yale there were plenty of other people in the legal academy as good as or better than him. When President Reagan nominated him Bork was quite famous for a lot of things he did in government service (can you say Saturday Night Massacre?) but in purely academic terms, his reputation rested largely on a single book, the Antitrust Paradox. He also wrote a famous law review article, Neutral Principles and Some First Amendment Problems, published in Indiana Law Review in 1971, which sets out his views on constitutional theory. It is one of the most cited law review articles of all time, in large part because it serves as a convenient foil, a symbol of positions that lots of people disagree with. It is, I’m sorry to say, not really a very good article; it takes a number of untenable positions about freedom of speech, and Bork recanted significant portions of it at his nomination hearings. His later writings after he left the bench have become increasingly shrill and polemical. That may be due in part to the trauma of the appointment battle. Even so, there is no way that one could compare Bork’s intellectual output over the past twenty-five years (or before, for that matter) with Posner’s. Bork has written, I believe, two books since 1987. Posner has written about twenty, on a vast array of different subjects, all the while holding down a full time job on the federal bench, and writing opinions of very high quality. It’s not that Posner is ever so slightly more impressive. The comparison isn’t even close.

My views about Antonin Scalia are very much the same, by the way. Smart man, excellent writer, much smarter than the average judge, but not even the most important legal thinker on the Chicago law faculty when he was nominated to the federal bench. Stephen Breyer did impressive work on regulation, and a great article on intellectual property when he was at Harvard. But he was far from the most significant figure in the American legal academy (or even at the Harvard Law School) when he went on the bench. And while on the First Circuit, he found, like most judges, that being a federal judge was a full time job. What is remarkable about Posner is that he discovered that being a federal judge *didn’t* take up enough of his time. He kept on writing book after book, article after article. And what is even more remarkable is that lots of these books are quite good, even though he argues lots of things in them that just drive me up the wall.

Juan is right when he suggests that my views on who I would find to be an acceptable nominee by a Republican President like George W. Bush are colored by my own politics. But I think he underestimates Posner’s distinctive achievement and contributions by suggesting that Bork– or, for that matter, a whole host of other very smart academics-- would fall into the same category of excellence. There is a very real difference here, and we should acknowledge it.


The First Amendment and Fair Use

Orin Kerr argues that there can't be a First Amendment right to fair use because fair use is an affirmative defense:

As I see it, the problem is that an affirmative defense only works in conjunction with its corresponding cause of action. While the Constitution may require an affirmative defense to liability under a specific cause of action, we don't normally speak of someone having a "right" to do the act just because a particular law would not (even could not) punish it. Consider the insanity defense in criminal law, which, like fair use, is generally treated as an affirmative defense that excuses liability. Some courts have held that the insanity defense is required by the Due Process clause, and that legislative efforts to abolish the insanity defense are unconstitutional. See, e.g., Finger v. State, 27 P.3d 66 (Nev. 2001); State v. Straburg, 110 P. 1020 (Wash 1910). However, we don't talk about having Due Process rights to commit crime while insane. That would be pretty odd, in fact; imagine a defense attorney claiming that a prison sentence violated his client's constitutional rights by incapacitating his client and therefore making it impossible for him to commit crimes that would then be excused by the insanity defense. The trick is that although the Due Process clause may require a state to have an insanity defense, that does not mean that the law has to otherwise allow acts that if committed would fall under the insanity defense. At a conceptual level, I think the right to fair use is similar. It may be that the First Amendment requires a fair use defense to copyright infringement. As I see it, this does not necessarily mean that the First Amendment invalidates any other law (such as the DMCA) that prohibits acts that would constitute (or at least lead to) protected fair use.

With respect, I think Orin is mistaken. Here's why:

Defenses in criminal law can be either justifications for actions or excuses for actions. Insanity and duress are excuses. Necessity or self-defense are justifications. Orin is right that we do not say that a person has a right to commit a crime while insane, but that is because insanity is an excuse, not a justification. The defense of insanity excuses conduct that would otherwise be culpable and therefore illegal. But we do say that people have the right to act in self-defense, or in cases of necessity, because self-defense and necessity are justified whether or not the law makes a certain act (like murder) a crime. The fair use defense is a justification for allowing people to make copies and distribute them in certain cases; it is not an excuse for otherwise wrongful conduct that a person couldn't help.

Why is fair use justified? Because of important policy considerations that intersect with first amendment values. Fair use allows people to engage in important forms of public discourse, and engage in creative transformations and commentaries on existing speech, and in this way it helps promote the growth and spread of knowledge.

A comparison to defamation may help clarify the point further. At common law, people had a privilege of fair comment, which was a defense to an action for defamation. They also had a defense of truth. The defenses of truth and fair comment were justifications, not excuses. The reasons why people are justified in making fair comments and in making true albeit defamatory statements are related to key free speech values. When the Supreme Court constitutionalized the law of defamation in New York Times v. Sullivan and later cases, it created additional constitutional privileges that also promoted free speech values. These privileges are justifications, not excuses; they recognize rights to speak that should exist regardless of the substantive content of defamation law. The defense of fair use in copyright law is much like the defense of fair comment in defamation law. Indeed, the First Amendment argument for limitations on copyright is structurally similar to the First Amendment argument for limitations on causes of action for defamation: If private rights (of reputation or intellectual property) are given too much protection, they will stifle too much valuable speech.

Note that this explanation is consistent with Eldred v. Ashcroft. In Eldred Justice Ginsburg stated that as long as Congress does not interfere with traditional contours of fair use, there is no First Amendment problem with copyright extensions. The First Amendment problem arises if government alters or severely limits the traditional contours of fair use, because fair use is justified activity that promotes free speech values.

This brings me back to the DMCA. The First Amendment argument against the DMCA is actually a little trickier, and that may be what leads Orin to see a potential problem in the argument. The argument is that if (for example) one purchases a DVD, one has a First Amendment right to gather certain information from it and transform it into other information, as long as this is done for otherwise justifiable purposes. The DMCA is unconstitutional because it makes it a crime to circumvent a technology that prevents these justified forms of information retrieval and transformation.

If there is a problem with this First Amendment argument, it is not Orin's objection, that fair use is a defense. The problem comes in proving that there is a First Amendment right to gather and transform information that is protected by a copyright management scheme if the government has legitimate reasons for protecting such schemes from circumvention. The government will defend the DMCA on the ground that the government's purpose is not to prevent fair use but to prevent piracy, and therefore the DMCA poses only an incidental burden on free expression that passes the O'Brien test-- i.e., that the regulation reasonably serves a legitimate government purpose that is unrelated to the supression of free expression. In order to make the First Amendment argument against the DMCA, one must show that the incidental restriction on freedom of speech that the law imposes is too severe. As I have argued in a previous post, Eldred actually helps you make this argument. Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.

Thursday, June 12, 2003


Posner for Chief Justice

The Bush Administration is surely not going to ask me for advice about judicial appointments, but if they are determined to appoint a conservative Republican to replace Chief Justice Rehnquist if and when he retires, I can tell you who right now I would be in favor of, even though I don't agree with him much at all:

Richard Posner.

For those of you who are unfamiliar with contemporary legal scholarship, Posner, who joined the 7th circuit in the early 1980's, is one of the most important legal scholars of his generation, and has written an endless supply of articles and books on virtually every legal subject imaginable, all the while continuing to produce a steady stream of extremely well written appellate opinions, which have made him perhaps the most influential lower court judge living today. He is a man of supreme intelligence, boundless energy and enormous learning. It is impossible for me to list the number of contributions he has made to legal scholarship. The quality of his accomplishments is such that he would grace the Court, and not the other way around. It would be fitting too, for him to be able to finally take a seat on the same court as his acknowledged idol and role model, Oliver Wendell Holmes, Jr.

I do not think that there is much chance that Posner will be nominated to the Supreme Court. He is probably now considered too old. Moreover, he has taken many controversial positions and said many controversial things in his career that will discomfit not only people on the left-- whom he delights in tweaking-- but also on the right as well. He is probably the most famous exponent of the economic approach to law, which leads him to take stands that are anathema to many liberals. He also has strongly libertarian and secular sensibilities, which will surely not endear him to social conservatives. And he takes great delight in saying things deliberately designed to shock others, which will cause enormous difficulties for any one who would try to be his political handler during confirmation hearings.

But he is a great legal thinker, and a great judge. When Orrin Hatch and other folks go on and on about how great a legal mind some of these Bush nominees possess I just have to laugh. That really cheapens the term. These guys may be ok lawyers, but they are not great legal thinkers. Posner, on the other hand, is a great legal thinker. If you want a truly Supreme Court you should put people of his caliber and quality on it. Appointing him to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect. And if the Democrats knew what was good for them, they would support an appointment for Posner, because there's nobody Bush would be likely to appoint who would even be close to doing a better job.

It'll never happen.


Is Pryor's Sincerity Enough to Make him a Good Judge?

William H. Pryor Jr., President Bush's nominee for a seat on the 11th circuit, testified yesterday on Capitol Hill, the Washington Post reports. There were two things he said yesterday that gave me pause. The first one, even if true, is not particularly helpful, and the second one suggests that he is either not entirely candid or is living in a fantasy world.

Pryor's first comment came as he was asked about his very conservative views on a number of issues, including abortion, homosexuality and the separation of church and state. Pryor explained:

I have a record as attorney general that is separate from my personal beliefs," he said. "I have demonstrated as attorney general that I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law."

I have no reason to think that Pryor is not sincere when he says this. But his record as Attorney General hardly shows him to be impartial, and if he thinks it does, then that is at least some evidence of what he thinks impartial judging would be. In any case, I wonder whether his assurances that he will follow the law should be sufficient comfort to those who find his personal views about the Constitution deeply misguided. After all, Attorney General Ashcroft and any number of conservative jurists, including Justice Clarence Thomas, have made similar promises to obey the law and not be guided by their own political preferences. Since he went on the bench, however, Justice Thomas has repeatedly shown that his opinions cannot be farily understood merely to be following the law; indeed, many of his opinions clearly reflect his personal convictions as well his very conservative political views, often views of the most extreme sort. And despite his repeated assurances that he would protect civil rights and civil liberties as Attorney General, Ashcroft, too, has demonstrated that in practice he has little concern for civil liberties in his enforcement decisions. Ashcroft may well believe that he has done nothing during his tenure to undermine civil liberties in this country, but I beg to differ, and the fact that he would believe this suggests that his sincerity is not a very good gage of his fidelity to basic civil liberties or to the Rule of Law.

As a result, even if Pryor is completely sincere in his belief that he will just follow the law, there is every reason to believe that he will take extreme positions if he is given a lifetime appointment as a judge. He will not be as free to take these positions as Thomas or Ashcroft have been, because he will be a lower court judge. Lower court judges are subject to constraints that Supreme Court Justices and Attorneys General are not. Nevertheless, lower court judges can in fact have an enormous practical effect on the development of the law through narrow or broad interpretations of precedents, through selective interpretations of facts, and on account of the practical reality that most appellate court decisions are never reviewed on the merits by the Supreme Court. I have no reason to believe, given his record before his nomination, that Pryor will be anything other than a jurist occupying the far right of the political spectrum. His politics will inevitably influence what he does, and because his politics are so extreme, (and with respect to issues like homosexuality, may I say, deeply unjust,) the influence will not, I think, work to the greater good of the country.

The second thing that Pryor said that gave me pause was a response to a question about the death penalty:

Defending his strong support for capital punishment, Pryor said the system has "extraordinary safeguards, many safeguards" to ensure that only the guilty are executed, that verdicts are free from discrimination and that the cases involve extreme and heinous crimes. "The system catches errors," he said.

Pryor said he was not aware of an innocent person being executed since the Supreme Court reinstated the death penalty nationwide in 1976. "If someone has a case they would like to present to me, I will certainly review it objectively, but I'm not aware of one," he said.

I'm not sure exactly how to interpret this. Perhaps Pryor was merely being cute and saying that he had never had the chance personally to review a specific report that conclusively demonstrated the innocence of a person who had been convicted and executed. But I don't think that's the best interpretation of what he said. I think he was saying that innocent people don't get executed in this country. Frankly, I think that is just unbelievable. Whether you support the death penalty or not, you must acknowledge that there is *some* error rate; the many reported cases of people who have been released from prison due to DNA evidence suggest that there are probably a number of innocent people who have been executed in this country since 1976. One can still defend the death penalty on the grounds that it is worth taking those risks if the quality of testing and access to justice is improved sufficiently. But it is a fantasy to deny that there is a problem here.

If Pryor actually believes what he seems to have said here, then I think he is engaged in wilful blindness about the nature of the criminal justice system in the United States. These statements suggest a person sufficiently enclosed in a worldview that recalcitrant evidence cannot get through. Such a judge, even if perfectly sincere and otherwise of the very best character, is unlikely to have the judicial temperament to mete out justice properly.

The President can do better than this in nominating judges. I wish he would.

Monday, June 09, 2003


Weapons versus Weapons Programs

The President has begun to backtrack, according to this Washington Post report:

"Iraq had a weapons program," Bush told reporters after a meeting with his Cabinet at the White House. "Intelligence throughout the decade showed they had a weapons program. I am absolutely convinced with time we'll find out they did have a weapons program."
. . .

In a subtle shift, some U.S. officials have begun to talk of finding weapons "programs" or "capabilities."

"Programs in and of themselves give rise to tremendous concern with the weapons themselves," [White House spokesman Ari] Fleischer said.

In accordance with its general policy that the best defense is a good offense, the Administration has begun to accuse its critics of writing "revisionist history:"

Fleischer, and other U.S. officials, including National Security Adviser Condoleezza Rice, accused critics of "revisionist history" in questioning whether Iraq had banned weapons.

"What the president has said is because it's been the long-standing view of numerous people, not only in this country, not only in this administration, but around the world, including at the United Nations, who came to those conclusions," Fleischer said. "And the president is not going to engage in the rewriting of history that others may be trying to engage in."

Very nice, Ari, but I'm pretty sure that it is the Administration that is engaging in revisionist history here, by asserting that what it was after all along was merely a "weapons program" rather than the possession of weapons of mass destruction.

Finally, the President changed the subject when asked about the WMD problem and American credibility:

Asked whether U.S. credibility was at stake in the search for weapons of mass destruction, Bush shifted the focus to the ouster of Saddam.

"The credibility of this country is based upon our strong desire to make the world more peaceful and the world is now more peaceful after our decision," he said. "History and time will prove that the United States made the absolute right decision in freeing the people of Iraq from the clutches of Saddam Hussein."

Again, inquiring minds want to know, is the world truly more at peace now than it was last year?

The most disturbing possibility, which the Administration has failed to respond to, is that there was no intelligence failure. Saddam did have the weapons, but they are now missing because they were smuggled out of the country during the chaos caused by the war. If that is so, then President Bush has made America less safe, not more safe by starting the war. And this is a fear, by the way, that was continually voiced by critics of the war like myself: If we attacked Saddam, we might win, and win easily. But we might make ourselves less safe, not more safe through causing chaos and upheaval in the Middle East and contributing to the proliferation of weapons of mass destruction.

Until the Administration addresses that possibility, its credibility deserves to be placed in question.


Volokh does Rhetoric

I've just gotten a chance to read through Eugene Volokh's Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers. The book is designed to teach law students how to write. Actually it's considerably more than that. It ranges all the way from grammar and style, to methods of persuasion, to organization, to using statistics, to the ethics of argument and treating people you disagree with fairly and with respect. It's all really very well done, and quite fun to read through, because Eugene has all of the virtues he wants his students to have. I'd recommend it to any law student, and to lots of other people outside the legal profession who want to polish their writing skills.

What the book actually most reminds me of are classical treatises on rhetoric, which ranged over the five canons of invention, arrangement, style, memory, and delivery. Put in more modern terms, the classical canon was interested in (1) how to choose a topic, subject matter and approach; (2) how to arrange and organize materials to make them most persuasive (3) how to express oneself in a pleasing and persuasive fashion; (4) how to draw on sources of information, facts, stories, anecdotes, etc.; and (5) how to deliver the argument in a way that would connect with the audience, including how one establishes one's character as someone who should be trusted.

Although Eugene doesn't talk about the classical canons, his book corresponds to them pretty well. Indeed, I'd say that this book is a worthy sucessor to the classical approach to rhetoric, brought up to date and focusing on modern concerns. After all, Cicero and Quintillian never had to worry about how to perform a Lexis search or calculate the right margin of error in statistical surveys.

And particularly important, to me at any rate, is that Eugene emphasizes not only questions of style but also ethics. The idea that the proper study of rhetoric cannot be divorced from considerations of ethics and character is very classical. Indeed, the entire book is suffused with an ethical tone, and I mean that as a high compliment. Over and over again Eugene emphasizes the importance of self-criticism, care, moderation, and balance. Eugene is a sort of rhetorical missionary for sound judgment, fairness, and discretion. That's a good thing, especially in these frenzied times.