"It's all politics": Ideological drift and CLS

Sandy Levinson

One of the valuable notions contributed by Jack Balkin is that of "ideological drift," the migration of ideas of ideas associated with one side of the great political divide by the opposition (e.g., the adoption of an "absoluitist" firsti-amendment position by devotees of big business with regard to corporate advertising, even as leftish devotees of campaign finance regulation or hate-speech prohibition renounce "absolutism"). I think we are seeing an example of such drift right now with regard to the debate about US attorneys. The defense of the Bush Administration boils down to some version of "it's all poltiics." Thus Kyle Sampson, formerly of the DOJ, has stated that the "distinction between political and performance-related reasons for removing a U.S. attorney is, in my view, largely artificial." Most defenders of the Administration's purge of insufficiently zealous Bushies, including discussants on Balkinization, argue that it's simply naive to expect US Attorneys to be committed to some relatively non-partisan notion of "the rule of law." Instead, they are put in office explicitly to enforce the political agenda of the President by prosecuting political enemies and, implicitly, being kinder to political friends. I'm surprised that defenders of the Administration have not pointed to the obsession by the Kennedy Justice Department with Jimmy Hoffa, who was, of course, convicted and imprisoned for jury tampering, thanks in part to the use of dubious (albeit legal, according to the courts) methods of gaining evidence. Hoffa was viewed as the moral equivalent of a contemporary terrorist, and the Kennedy DOJ did functionally "whatever was necessary" to put him behind bars and remove him from power.

It's hard for people like me--i.e., fellow travellers (and at one time adues paying member) of the late Conference on Critical Legal Studies--to get a leverage point to criticize the Administration. As I've argued in an earlier post, I don't think that "we" have a language adequate to analyzing the extent to which political considerations do indeed pay a proper role in the administration of justice, as against the point at which paying attention to such considerations counts as corruption. It is, I think, significant that my Balkinization colleague Brian Tamahana and, indeed, Jack himself, with his "converstion" to a form of originalism, are indeed articulating the importance of taking "the rule of law" seriously even as the Administration and its defenders seem ever more to adopt a language linked in earlier decades with CLS. The "drift" is running in both directions, as people identified with the left (and, in Jack's case, with post-modernist impulses) are trying to revive some central classical-liberal verities.

This is obviously too simplistic an analysis. Bushies will quickly emphasize their ostensible desire to nominate judges who will simply "enforce" the law rather than make it up. This is what they say. The problem, of course, is that for many of us, the contemporary "law" of federalism, including immunities doctrine, is completely fabricated by zealous conservatives. And the ostensible commitment to "judicial restraint" is belied by the call for judicial invalidation of any and all use of race in public policy (see, e.g., the current Seattle and Louisiville cases before the Supreme Court), which would be nothing more than the reading of a particular political view (which, arguendo, may even be defensible) into the "majestic generalities" of the Fourteenth Amendment. If Roberts joins in a majority opinion striking down the policies of those two school systems, every Roberts-besotted writer who seems him as committed to "restraint" and reducing conflict on the Court should engage in a public apology.

Among such writers is Jan Crawford Greenburg, whose new book Supreme Conflict, though an enjoyable read, is marred by the lack of any real analysis of some of her arguments. Thus she seems to take seriously that Republicans are seeking judges committed to "restraint,," even as she herself notes that they loathe O'Connor for her not pulling the plug on affirmative action in Grutter, which would scarcely have counted as "restraint." As many people have noted, there is not a single justice on the current Court who can be described as a Frankfurterian "restraint" buff; it is simply that they differ as to the particular issues on which they want the Court to intervene in ordinary politics.

To accuse the Bushies of hypocrisy, however true that may be, does not really lead to progress in trying to figure out how, in the 21st century, after most of us have absorbed various lessons of American Legal Realism, Critical Legal Studies, etc., we articulate a language of "respect for law" that doesn't sound equally hypocritical to those on the other side. Wasn't it at least in part his inability to find such a language that led Laurence Tribe to give up his monumental treatise, since he presumably didn't want to envision himself as writing a merely partisan tract rather than an approach to constitutional law that could transcend, in some measure, partisan divisions?

We are, I believe, in a triple "constitutional crisis." One, of course, involves the dysfunctionality of our hard-wired Constitution, and I trust that my views on this point are familiar to readers of Balkinization by this point. Another is the abuse of constitutional norms by the Bush Administration, particularly its near-dictatorial conception of the presidency and its seeming disdain for the proposition that Congress is a partner in governance. But the third is the inability of our standard-form "constitution-talk" really to work as a mode of constructing arguments that can, for more than a moment (if even for that long), still the confident assertion that "it's all politics."

Ironically enough, I'm most confident that "it's not all politics" with regard to the parts of the Constitution I am increasingly interested in, i.e., the "hard-wired" clauses. But they, of course, are the parts of the Constitution that get almost no attention. Ostensibly serious people in the Democratic Party seem to believe that it makes more sense to advocate a new "Women's Rights Amendment," the need for which is close to impossible to demonstrate given current decisions of the US Supreme Court, than even to consider the possibility that we are disserved by any of the hard-wired clauses. Is it too unfair to describe this as a form of fiddling while Rome burns?
Posted 11:03 AM by Sandy Levinson [link]