James Whitman
Last week there was a landmark moment in comparative law, and in the international crisis of liberal democracy. It should not go unremarked. The European Commission, as the New York Times explained in a condescending editorial, “reminded Poland how a democracy acts,” initiating an Article 7 proceeding because the Law and Justice Party has engineered a “clear risk of a serious breach of the rule of law.” The charge, as readers of this blog must all know, is that “Kaczynski and his ilk,” as the Times call them, pushed though judicial “reforms,” with the result, in the words of the Commission, that “the country’s judiciary is now under the rule of the political majority.”
Now, I have no patience for Kaczynski and his ilk, and none of us should. But there is something unbecoming about an American newspaper, and Americans more broadly, sniffing at a country where “the judiciary is now under the rule of the political majority.” If we’re just going to engage in unselfconscious preaching, we will miss an opportunity to think hard about the way things are done here at home.
The Commission’s press release is not a model of clarity on what might count as a “serious breach of the rule of law,” but the fact is that it has enunciated a crucial rule of law principle in this time of transatlantic crisis. Does it really need to be emphasized that the Commission has come down on Poland at the very moment that the last checks on the politicization of the judicial appointments process have fallen by the wayside in the US Senate? The Europeans—or at least the Western Europeans who are still in control in the EU—have just made a formal declaration of a decisive difference between their understanding of liberal democracy and ours. I think the Commission is on the right side of this divide. Others may differ. But it’s a big post-Cold War moment for all of us when the Europeans effectively declare that there is a serious breach of the rule of law in the United States.
And let’s be clear: The politicization of American judiciary may be reaching its climacteric in the Trump era, but it is much older than that. The Commission is not just (sotto voce) condemning Mitch McConnell. It is condemning an American politicization, or if you prefer “democratization,” of the justice system that goes back at least to the rise of the elected judiciary in the Jacksonian era. The fact is that if Trump and McConnell are succeeding in pulling off a Kaczynksi, it is only because American traditions make it easy for them. In the civilized countries of Western Europe, for those who don’t know, judges are recruited into a highly structured career from a young age, and socialized into the values of professional independence that are the sociological foundation of a meaningful rule of law. And that’s to say nothing of professionalized culture of European prosecutors, European prison officials, and more. I’m sure there’s no hope that the American justice will ever look that. But over the last generation it’s come to look less and less like it, and the European Commission has just called us out.
James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. You can reach him by e-mail at james.whitman at yale.edu