Balkinization  

Wednesday, November 10, 2004

The Gonzales Nomination

JB

There are two reasons why Bush might have nominated Gonzales to be Attorney General. The first is that he is grooming him for a further appointment to the Supreme Court. The second is that he never plans to appoint him but wants to send a strong signal that he might.

Gonzales is not a doctrinaire conservative. He is a loyal servant and friend to the President. He is a team player. It is unclear what his deepest moral convictions are. But however fine a fellow he is, he has done something that is, in my mind, inexcusable. He commissioned and put his name on a series of despicable legal memos that justified torture and prisoner abuse and that tried to avoid America's obligations under international law. In ordinary times, this would in itself be disqualifying. But, alas, these are not ordinary times.

It is time for those who think the Bush Administration has gone too far to stand up to the President, to make the legal case against his Administration's policies and appointments. For years conservatives railed against judicial activism. It is time for liberals to start railing against government officials-- including judges-- who show disrespect for basic Rule of Law values, who flout basic protections of American constitutional law and international human rights law, and who seek to concentate ever greater power in an unaccountable executive.

Even if (and especially if) Gonzales is confirmed, it is vitally important to make these points loudly and often. Liberals must stand for something other than the correctness of Roe v. Wade. There are important constitutional, legal and democratic values at stake in the next four years. They have been repeatedly sacrificed by this Administation, in its fetish for secrecy and unaccountability and its endless thirst for unreviewable power. And the President seems to have taken from his victory at the polls the belief that he is entitled to seize even more power and cut even more corners. It is important to begin making the case before the American people that our Constitution, our democracy, and the Rule of Law itself have been placed in jeopardy-- not by the decisions of activist judges in Massachusetts, but by overweening and ambitious members of the Bush Administration-- and that the legal and constitutional values we hold dear must be preserved and defended vigorously or they will slowly but surely be dissipated. Daring to ask why a former judge who has defended the President's right to torture and mistreat prisoners in violation of international law should be made the nation's chief law enforcement officer is a good place to start.


Comments:

People who do not know that Scalia and Stevens were right in Hamdi have no right to complain about the rule of law now. People who do not stand up against Roe as utter fiction, however appealing its result, cannot pretend to stand for the rule of law now.

People who do not acknowledge that Henry Paul Monaghan was right in deriding those who cannot live with the notion that our Constitution is not "Our Perfect Constitution" cannot now yelp when it is their ox being gored.

Those who made the compromise with the devil that was supporting "pragmatism" or, worse still, a Dworkininan notion that the Constitution just enshrines "our" best moral instincts have no leg to stand on when they lose arguments about the meaning of the Constitution.

Such people have abandoned the rule of law and have abandoned any complaints they have related thereto. Should there be any confusion about this, consult More in a Man for All Seasons, who explains why you can't go after the devil until he's actually violated the law.

If you can't understand that, then you couldn't understand anything I've written here, and you still have no right to complain, because you are sadly--no, tragically--mistaken.
 

This idealistic proclaimation about the "rule of law" might suprise some of the founders those who speak of it honor so much. Pragmatism has always been an important part of law, so yes, use of it does not violate the "rule of law." I don't know if Balkin is a kneejerk supporter of Dworkin's philosophy either. Also, ironically, Justice Thomas in Hamdi might just suggest Scalia is overly idealistic there as well.

As to Roe, well that's a tiring inclusion, as if someone who is wrong on Roe cannot be correct on opposition to torture memoranda. Also, even those against Roe per se, can support the right at its heart on other grounds, as many quite loyal to the Constitution easily can be. (e.g. equal protection)
 

As to construing the Constitution, the rule of law and moral values, take a look at Shannon D. Gilreath's "The Technicolor Constitution: Popular Constitutionalism, Ethical Norms and Legal Pedagogy" recently published 22 Texas Journal on Civil Liberties & Civil Rights [Vol. 9:1] available on line at:
http://ssrn.com/abstract=607881
and the role of "We the People ...."
 

Professor Balkin,

I haven't followed the Gonzales nomination in great detail, but some assertions made both here and in Slate have made me wonder about a few things.

First, I am wondering about the charge that Gonzales tried to avoid America's obligations under international law. Is it possible that Gonzales is simply applying a different, legitimate view of the proper role of international law? I'm not a fan of the Bradley/Goldsmith position myself, but I also think that Bradley/Goldsmith (while I disagree with is) is a reasonable and intellectually consistent position. Is it possible that Gonzales's decisionmaking in the international law area stem from an attachment to Bradley/Goldsmith views on international law rather than an attachment to Henkin views?

My second question is how Gonzales's actions threaten the Rule of Law, and in what sense you are using the term. At one point you use the term "basic Rule of Law values." This phrase could mean any number of things, but common conceptions of the basic rule of law, depending on how they are framed, generally require that laws be knowable, performable, and equally applicable. It's not entirely clear from your reasoning how Gonzales's actions would violate a basic rule of law. (And to the extent that you are importing further content into your conception of the Rule of Law, do you open yourself up to criticism that your version of the Rule of Law is not the basic, widely accepted version?) If I may ask, what is your conception of the Rule of Law as discussed here, and how does Gonzales violate it?

I'm not disagreeing with you (yet) on either of these points, but I would like to see further information, if possible, since each of these seems to raise some potential questions.

Thank you.
 

Joe,

It is right to say that pragmatism features in the law, and that there are proper spheres for it. I should have been clearer that I meant the sort of pragmatism (claiming no heritage in Peirce though perhaps in Holmes) that Breyer tends to push, as well as O'Connor--what one sees in their giving the government too much, in my view, in Hamdi. The issue was simple--the government had no right in law to suspend habeus except in the fashion provided in law. Thus, there was an immediate right for Hamdi, not the "balanced" truncated right found by the pragmatist court. This clearly violated the law and the rule of law.

I'm sorry if you think it's tired to link this with Roe, but let's face it, once the sort of untethered jurisprudence of the Griswold-Roe-Casey-Stenberg-Lawrence line becomes enshrined, there's no claiming that a meaningful sense of the rule of law is important to the enshriners.

This is precisely what the More (well, really Robert Bolt) quotation I refer you to is all about, and it is precisely why Scalia warns very clearly that history doesn't have just one direction. When the wheels came off of "the rule of law" with the substantive due process cases, it became a little too late and a little to precious to hear from defenders of those decisions that "the rule of law" is suddenly lacking its constraining power.
 

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