Legal Commentary

Much of the discussion of John McCain's speech on his "judicial philosophy" (I cannot help but put that in quotes) has been interesting and even illuminating.  My earlier post is here, and I really commend to readers the comments on it by Orin Kerr, especially, and by Trevor Morrison.  I also recommend the discussions between Orin and Doug Kmiec at Convictions, and some of the posts at Balkanization.  I'd like to add to the discussion by responding at length to Orin's observations in the comments section of my earlier post.  Orin writes, quoting me in italics:

In any of the roles you posit, including that of political conservative, I assume the relevant standard should be one of sound judgment and something more than merely strategic calculation; and on that standard I find it hard to see how McCain's boilerplate makes a filling meal.

This is where we disagree, Paul.

Maybe some context would be helpful. Many conservatives feel that they have had a hard time in the last few decades getting what they perceive as "solid conservatives" appointed to the Supreme Court. Yes, there have been many vacancies filled by Republican presidents, but Republican nominees have been hit or miss. Sometimes conservatives get Scalia, but sometimes they get Souter.

In light of this, conservatives often ask themselves a question about Republican presidential nominees: If elected, will this nominee take the need for conservative judges seriously, or will they not take this issue seriously? To many conservatives, their support for a Republican President stands or falls on this issue.

It seems to be that Cassell is just trying to answer this common question out loud in the case of McCain. He's trying to guess if McCain is serious on the issue, and if conservative voters will realize that. Perhaps it is only "strategic calculation," but if so then it's the strategic calculation on which our democracy is based: Choosing who to vote for based on whether the candidate would do what the voter wants. It's not going to be published in the Harvard Law Review, but that's because it's just a prediction of how a candidate would act if elected and how voters might respond.

Let me first of all say that it's a genuine pleasure to have these kinds of discussions with Orin.  Seeking in good faith to find and clarify a point of disagreement is just how these dialogues should be conducted, and he has been an extremely skillful and charitable interlocutor by this standard.  Thanks. 

I think we have indeed come close to identifying our point of disagreement.  It may be indeed that Cassell is simply saying that on the basis of this speech, he thinks McCain will take seriously the "no more Souters" goal that has been informally advanced by some sectors of the conservative community (and which was made explicit in yesterday's NY Times story about McCain's speech by at least one person quoted in the article), and he is thus "satisfied" in the particular sense in which you use the word.  If so, I don't think that is different from "mollified," but I don't think too much turns on the word apart from nuances of meaning.  And, as you say, so what?  This is how we pick judges and Justices, those choices have real consequences, and the fact that "politics" are part of the judicial selection process is at least a link between the Court and the democratic process.

I share at least some of these realpolitik leanings.  But, and here perhaps is where our disagreement lies, I do not think those leanings should be enough to guide and fill the content of public statements by academics, at the very least (and I count Cassell as one), and perhaps in an ideal world by everyone.  After the jump I have an unfortunately large amount to add to this point, which ultimately is not only about Cassell and McCain, but about the duties of academics.  I also have some additional comments that go more directly to the McCain speech and to Orin's discussion.

I acknowledge that the desire to turn the world into a faculty common lounge is an old one among academics, that it is neither realistic nor entirely to be desired, and that many academics (including certainly many, many academics on the left) would fail this standard anyway; and I disclaim any such desire. 

But of course I am an academic, ever more so as my identity forms in the crucible of my surroundings and the books I read, and sometimes in response to the failure of people around me to act as I think academics should.  I strongly believe academics have a duty to seek after "the good" and "the true," that they must always approach issues with an academic's humility and desire to weigh everything in the balance, and I come close (but not the whole way) to thinking that such standards and methods should guide their extramural statements as well.  Even if that is not always the case -- even if an academic is allowed to say "I like the Red Sox" instead of launching into an on-the-one-hand, on-the-other disquisition about baseball, antitrust, wind patterns, and so on -- that duty is especially pertinent when, as is the case here, an academic speaks extramurally on matters that are close to his academic interests.  Of course, as I have suggested, I really think everyone ought to act and speak this way -- not without passion or deep convictions, but with what I consider to be integrity, humility, and an abiding concern for truth and sound judgment.  But academics have positively taken on that obligation.

I thus think that academics are obliged to be largely indifferent to the political consequences of their speech, provided it meets something like the standards defining integrity for academics.  If a liberal legal academic cannot say publicly (if she believes it to be so) that Roe v. Wade is a poorly reasoned decision and even question the legitimacy of substantive due process jurisprudence merely because, in a typically academic fit of vanity, she fears that her statement might lead to the downfall of constitutional protection for abortion, or, more to the point, because she fears she will be drummed out of polite circles, then she is falling short in her obligations as an academic.  If a conservative legal academic cannot publicly reach similar conclusions about some set of contrary cases -- say, that she thinks no originalist attempt to justify Brown has yet succeeded, or that Kelo is an utterly unexceptional opinion, or what have you -- whether for similarly consequential reasons or because she expects a cold reaction at the next FedSoc conference, then she has fallen short in her academic obligations.  I believe an academic should consider the world, let alone the Third Branch, well lost for the sake of saying something true, as best as he or she can reach the truth by his or her lights.  Like Frankfurter, I am a promiscuous citer of Robert Bolt: "Why, Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales!"

This takes us a long way, admittedly, from our initial discussion.  I don't mean to be too pompous about all this, although I wish more academics took their obligations along these lines more seriously than they do.  And I don't mean to suggest that Cassell is a poor academic; if he were, he would not lack for company, but I have no basis for such a suggestion.  But all this speaks to why I was disappointed by Cassell's initial post, and why I am no less disappointed having factored in Orin's comments.  For the reasons I've already given, which are buttressed by reactions elsewhere including Trevor's comments, I think that McCain's speech was nothing much: primarily boilerplate, although also laden with the kinds of errors and inconsistencies that will inevitably arise if one also tries to satisfy an interest group that one shares the same bugaboos -- especially Kelo -- while rigorously avoiding any talk about legislative or executive overreaching.  (See Doug Kmiec on this point, who finds it ridiculous, as I did, that McCain should focus on the judiciary as the sole or primary threat to separation of powers.)  I suppose Cassell, as a conservative, is entitled to conclude: "Well, McCain will give us what we want; mission accomplished."  But if the speech is blather, and Cassell decides to say something about it, then I think he should -- perhaps must -- say that it is blather.  Since I think the speech incontestably me that description, I think he should have said as much.  I suppose at that point he was welcome to add: "But who cares?  So he's not Einstein.  At least he won't appoint a Souter."  But to the extent that Cassell was an academic, speaking on matters close to the heart of his academic expertise -- and the more the second proposition is true, the more I think his academic duties come into play, even if he was speaking extramurally -- it was disappointing to hear him laud this unremarkable and somewhat poor speech.

Let me add some loose ends.  I have already suggested that to the extent Cassell's post purported to garland McCain's speech, the speech itself gave him little reason to do so, and that to this extent Cassell made a poor showing as an academic and/or as a public intellectual.  But it seems to me his post is subject to criticism even if, per Orin's suggestion, we read it only as saying that, in light of conservatives' concern that "they have had a hard time in the last few decades getting what they perceive as 'solid conservatives' appointed to the Supreme Court," Cassell was satisfied by McCain's speech that McCain will "take the need for conservative judges seriously." 

For one thing, one Souter does not a summer of discontent make.  Scalia, Rehnquist as Chief, Thomas, Roberts, Alito -- what more do you want, animatronic statues of Ed Meese and Friedrich Hayek to greet visitors at the top of the marble steps?  There comes a point at which a carefully nurtured sense of grievance that survives any facts to the contrary is fairly described as a pathology.  I hasten to add that such pathologies are hardly unknown on the left -- that the tendency to describe varied phenomena strictly in terms of friends and enemies is both an aspect of human nature and a particular product of partisan division.  I don't like it anywhere.

And again, McCain's speech was not limited to the Supreme Court.  He suggested that the judiciary in general is wildly disobedient to the Constitution and to judicial duty.  As Doug Kmiec has pointed out, the federal judiciary is largely stocked with recent Republican appointees who have increasingly been vetted for ideology at all levels.  If solid conservatives are still dissatisfied, perhaps we should begin to unpack the usefulness of the phrase "solid conservative."

Of course, as you suggest, we could read Cassell as simply saying, regardless of the content of McCain's speech, no matter whether every single word was inaccurate or overreaching, no matter whether he was right about the federal judiciary in general or not, I like the speech because it signals that he will take seriously conservatives' desire to have people of their ilk appointed to the Supreme Court.  In that case, the substance of the speech literally does not matter.  If McCain had instead sent out a trained monkey wearing a Thomas Cooley mask, or engaged in a show of Tuva throat-singing, or declaimed filthy limericks from his days at the Naval Academy, all the while flashing the words "I will appoint serious conservatives to the Court" on a neon sign above the stage, Cassell's reaction would or should have been the same approving one.  The only question would be whether sending the message via Tuva throat-singing was politically saleable.  (In this crazy, sound-bite world, it just might not be.  So much the worse for us.) 

I would like to think more of Cassell than that, and I do.  But in any event, even on this basis and given the speech we have, there is really little reason for Cassell to be satisfied.  And that is for the simple reason that anyone who has followed McCain's career over its entire stretch, who has looked over the years at what moves him and what doesn't, who he likes and those to whom he is indifferent or worse, knows that McCain is not serious on the issue.  He doesn't care all that much about judicial philosophy, judicial politics, or judicial nominations; indeed, the only time he ever got especially engaged in this issue, he did so for the sake of preserving the prerogatives of the Senate and not for any reasons of judicial philosophy.  If you are a Republican and/or a conservative, of course you are welcome to support McCain; to paraphrase, you work with the candidate you have.  But let us not blink reality.  This is simply not one of his deeply felt issues, and everyone who knows McCain knows this. 

I am now edging into an evaluation of other people's motives, and I should be cautious doing so, but I dare say that the reason that Cassell, and if not him then other conservatives, were "satisfied" by McCain's speech is the very same reason that some liberals will rail against McCain on the equally mistaken grounds that, if given a chance, he will be hell-bent in his desire to appoint "right-wing nuts" to the Court.  Both sides say he takes the issue seriously, but both sides understand that he does not -- but that, precisely because he doesn't care that much about it, he will more than gladly hand over the appointments process to those among his constituents who do.  Again leaving aside Cassell, I think that is the best, most intellectually sound reason for conservatives to approve of McCain's speech: not because it signals that he cares, but because it signals that he won't get in anyone's way on this issue. 

As you say, Orin, if results are what counts, then that is reason enough to be satisfied.  But it is not reason enough for me to be satisfied as an academic.  And I don't think it should be reason enough for genuine and thoughtful conservative intellectuals, whose ranks are legion and who ought to care as much about what is said and how results are achieved as about the results themselves.