February 3, 2011

How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.

At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"

The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].

Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be." 

It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:
LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do.

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

FRIED: Not a soul.

LEAHY: I thought you might feel that way.
Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.

Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!

(I'm sorry I don't have a transcript to link to. Here is video of the event.)

67 comments:

Bob_R said...

Are there lawprofs who admit that the purpose of being a lawyer is to put as many hardened criminals on the street as possible - and trash you as naive or evil if you don't go along with them?

Rick67 said...

I'm a little confused here.

1) What exactly does "should disagree" mean in this context? Is Fried saying - in effect - "I don't know anyone who *should* disagree with the idea that judges rule based on law not policy preferences"? What does that even mean?

2) If Leahy is trying to prevent Fried from admitting there are law profs who hold the "policy trumps law" view... then why did he even raise the issue in the first place? By asking the question at all did he not risk Fried saying "I *do* know people who favor policy over law"?

Even with the excellent professor's analysis I can't figure out what's going on here.

Scott M said...

Even with the excellent professor's analysis I can't figure out what's going on here.

Ditto...although I've admitted before that I'm simply not that bright.

James said...

Louis Butler. He has the distinction of being one of only two sitting Wisconsin Supreme Court justices to lose an election bid.

Butler was recently nominated by Obama to sit on the federal bench.

a href="http://online.wsj.com/article/SB10001424052748704402404574525741364961888.html">/a>

His nickname as a public defender was "Loophole Louis," a name that stuck when, as a judge, he was considered to be soft on crime.

plumcolr said...

Patrick Leahy tottering - very apt.

bagoh20 said...

The Iron Law of Oligarchy, but keep it quiet.

Ann Althouse said...

"1) What exactly does "should disagree" mean in this context? Is Fried saying - in effect - "I don't know anyone who *should* disagree with the idea that judges rule based on law not policy preferences"? What does that even mean?""

The question as asked by Leahy is subject to the interpretation that he's asking whether people *ought to* disagree, and Fried therefore is able to say no. I don't know why Leahy created that escape clause for Fried, if he was sharp enough to do it on purpose or just bumbled into it. But Fried was sharp enough to see the loophole and quietly jump through it.

"2) If Leahy is trying to prevent Fried from admitting there are law profs who hold the "policy trumps law" view... then why did he even raise the issue in the first place? By asking the question at all did he not risk Fried saying "I *do* know people who favor policy over law"?"

Leahy probably thought Fried would answer the first question "no"... although that was stupid of Leahy. Then, when Fried said yes, Leahy tried to substitute an answer he thought Fried would give -- "They don't admit it." Maybe he immediately realized that at Harvard some people probably do admit it, and he generated the loophole, the "should" question.

Luke Lea said...

Of course judges on the right do it too. Think Bush-Gore 2000.

SteveR said...

I have the same opinion of Leahy as Dick Cheney

Pastafarian said...

It sounds as though Leahy expected Fried to lie, and say "No one believes that", making the point that this attitude is a bogey man of the right. Leahy was stunned when Fried answered honestly.

Of course, law professors like Fried (and certain others) might well think that they don't believe that constitutional issues should be decided based on policy rather than the text of the constitution; but then they believe in magically elastic enumerated powers that expand with "importance" of that which is to be regulated.

Pretty easy to paint yourself as following the constitution when you consider it that flexible.

Maguro said...

Of course judges on the right do it too. Think Bush-Gore 2000.

Um, OK, I'm thinking of Bush-Gore 2000. What's your point? That conducting a recount in only 4 counties in Florida doesn't violate the equal protection clause?

Please explain your reasoning.

Pastafarian said...

It's a little like Rosanne Barr declaring herself a size 2, because she managed to stretch an almost infinitely elastic size two little black dress over one thigh.

Comrade X said...

how plausible is it that Fried really believes people SHOULDN'T agree with him that policy trumps law?

I guess the reasoning would go like this: the ends justify the means, which is totally wrong and people shouldn't agree with it, but it's ok because the ends justify it.

Scrutineer said...

I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

You said on Bloggingheads that the Commerce Clause regulatory power should be construed broadly enough to include requiring individuals to buy health insurance because "we're dealing with the kind of activity about which it needs to be possible to deal with it on a uniform national level..." You think it would have bad policy consequences if Congress lacked this power. Therefore Congress has this power.

edutcher said...

One of the worst things to happen to American jurisprudence was when Ol' Persimmon Lips was given the bum's rush off the Senate Intelligence Committee for leaking classified info. In a collection of Useless Idiots, he nonetheless manages to stand out.

He was the Chuckie Schumer of the 70s and 80s when it came to grabbing the cameras. He must hate being upstaged.

PaulV said...

Luke Lea, unable to admit that SCOTUS voted 7-2 to stop recount in FL because it violated equal protection and that SCOFL ageed that it was too late to restart the
recount after 12/12/01. Stuck on stupid again. What about equal protection do you disagree with?
I suggest your talking points do not cover this.

Alex said...

What % of swing voters believe that judges should decide law based on policy rather then the LAW?

bagoh20 said...

Admit it or not, we all agree that policy outcome is supreme. Some of us just believe that following the constitution gets you there. Therefore, WE are superior and more trustworthy. The rest of you will resort to any means necessary, but can't admit it.

Richard Dolan said...

Unless Fried is pining after a judgeship (very unlikely given his age), he has no skin in this game and nothing to lose by "revealing that many law professors think judges should decide constitutional questions to produce the best policy considerations." (And it's a bit much to suggest that anything would have been "revealed" by Fried's answer.) The whole "escape hatch" narrative assumes that he had some need to avoid saying something that would otherwise be embarrassing or against his interest. But that's what's missing in this narrative.

Fried is a conservative guy -- SG under Reagan, one of the original righties at HLS, etc. So why wouldn't it have been in his interest to see Leahy's "should" question not as the escape hatch you posit, but instead as a door slamming shut and stopping him from moving to where he wanted to go? If it was an escape hatch, it deserves that title mostly by having provided Leahy an exit from a line of questions that, on reflection, was more likely to harm his side.

I realize that the subject was ObamaCare and Leahy's team wants to slam Judge Vinson as an activist trying to substitute his policy views for Congress's. But the point of that criticism, other than its value as rhetoric, attacks the very idea of impartial judicial review of federal legislation. That's not an approach likely to sit well with folks like Leahy, for whom the paradigms of judicial review are still Brown v. Board, Roe v. Wade, Lawrence v. Texas, etc.

AJ Lynch said...

What a waste of time- as if faux congeniality from leftist Senator Leahy is just what we need in DC

Luke Lea said...

"Of course judges on the right do it too. Think Bush-Gore 2000.

Um, OK, I'm thinking of Bush-Gore 2000. What's your point? That conducting a count in only 4 counties in Florida doesn't violate the equal protection clause?

Please explain your reasoning."

I believe the Constitution says the states shall have the final say in matters of this kind. And the Florida Supreme Court made that decision. The U.S. Supreme court over-ruled on the grounds stated, said unfortunately there was no time for a do over, and btw this decision was a one time thing only and shouldn't be counted as a precedent. Ha!

It is a precedent, and a good one too, but taken for the wrong reasons. :) Those guys were REPUBLICANS

Ralph L said...

Leahy expected Fried to lie
Leaky must have heard "Harvard Law School" and forgot himself.

dbp said...

It was Charles Grassley who asked the original question and Leahy who thought-up the loophole.

Had Grassley not been running out of time, maybe the original question would have been answered.

Scrutineer said...

Luke Lea: I believe the Constitution says the states shall have the final say in matters of this kind. And the Florida Supreme Court made that decision.

The Constitution says the state legislatures, not "the states," have the final say. The Florida legislature said the state supreme court misconstrued the relevant law.

If you think it's a slam dunk that the SC acted lawlessly out of conservative bias, ask yourself why Althouse, who voted for Gore, "accepted nearly everything the Supreme Court did in the complicated litigation over the recount."

Ann Althouse said...

"That conducting a count in only 4 counties in Florida doesn't violate the equal protection clause?"

The final Bush v. Gore decision was after the Florida Supreme Court ordered a recount of all the machine-readable undervotes in the entire state. The Equal Protection violation was the failure to resolve the well-known issue of how dented or detached the chad had to be to represent the "intention of the voter." The state court left that matter to be decided locally.

Casey said...

I find it odd that anyone would openly advocate tossing out precedent and the law in favor of "the best consequences". Sure, I can see someone holding such a view in private, and secretly hoping that the magistrates on their side do so quietly in rulings. But shouting it from the rooftops runs the risk of the idea spreading from the good good philosopher kings on your side to the bad bad tyrants on the other who will use it against your goals.

It seems tremendously short sighted to be vocal about such things.

Ann Althouse said...

I was eagerly rooting for Gore all along, and I accepted the resolution that the US Supreme Court provided.

Ann Althouse said...

So did most Americans! For most of us, it was the state court that seemed to be off the judicial track and in need of reining it. The idea of one state court controlling the outcome of a presidential election... it was pretty outrageous and the Supreme Court brought it under control.

Hoosier Daddy said...

Maybe there should be a Constitutional amendment that states something along the lines of:

Any government policy that promotes the general welfare of the People, is automatically Constitutional. Period. End of discussion.

So it is written, so it shall be done.

Hoosier Daddy said...

I was eagerly rooting for Gore all along, and I accepted the resolution that the US Supreme Court provided.

So should all Gore supporters rather than perpetually embarrass themselves by continuing to defend a whole bunch of voters who clearly were not intelligent enough to properly mark a ballot that 3rd graders were more than capable of doing.

Lucien said...

Not the best way to start the post. You quote a question phrased in the disjunctive, and then say that the witnesses all agreed with it. What in blazes does that mean in English?

Passing that, isn't one clear rule of construing (or interpreting)any statute the directive to avoid an absurd result?

Phil 3:14 said...

Wait, isn't Sen. Leahy a lawyer? I thought you were never supposed to ask a question for which you didn't already know how the witness would answer?

I seem to recall a classic example of this:

If the glove doesn't fit...
(well you know the rest.)

Original Mike said...

"LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do."


Lehay's "save" is too late.

Sloanasaurus said...

At some moment, there will be a tipping point, where America as we know it becomes old America - the America where the rule of law based on the constitution prevailed. Sure there will be vestiges of the old republic - the congress will still meet, the statutes of the founders will remain, and we will still have elections but everyone will know that the Republic is no more and that power no longer resides in the people.

It must have happened in Rome at some point - when they realized that the Republic was dead or had been dead from some time and that self-governance was ancient history.

I wonder how that will look here?

virgil xenophon said...

You're looking at it now Sloanasaurus--every-time someone comments about waiting to see how Justice Kennedy will decide.

Nothing like a one-man Tzarist ukase..(or 5 if you're so inclined)

Lets face it, sportsfans, in our present day the Constitution REALLY DOES mean simply nothing more than what 5 un-elected justices--appointed for life--says it does.

Yu-Ain Gonnano said...

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

Even after Ann's clarification, I still don't know what this means.

I imagine Fried turning the sarcasm up to 11 and replying: "Sure Senator, I think some really smart people, like yourself, should disagree and decide constitutional questions to produce they best policy while us dumb rubes over here should stick to what the constitution actually says".

Or perhaps: "Not anyone I know, but I'm sure there are some that I don't know that should disagree".

Peter said...

I want names, please.

Who are these law professors -- at Harvard or Madison -- who reject the idea that "judges should decide cases based on their best understanding of the meaning of the Constitution" and not on "whether they think their rulings would have good or bad policy consequences"?

lemondog said...

The Althouse escape hatch gives one perspective on Ol' Persimmon Lips {hahaha} possible intention but Richard Dolan's door slamming shut seems a more likely explanation.

Luke Lea said...

O boy, a oountry yokel gets to argue with a law professor:

First, the Constitution says: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:"

And then Ann says: "For most of us, it was the state court that seemed to be off the judicial track and in need of reining it. The idea of one state court controlling the outcome of a presidential election... it was pretty outrageous and the Supreme Court brought it under control."


So is she going with her gut instinct here? Does she think it would have better for the Florida legislature to decide post facto what Florida law was in this instance?

Why did the U.S. Supremes this ruling should not be considered a president?

Finally, does she think the Republican judges on the court would have voted the same way if the situations had been reversed? Are they never free of judicial activism, in the Citizen's United case for example?

And for the future, how much should the U.S. Supreme Court intervene to prevent fraud in Presidential elections? How about the Delay case: he goes to jail but the Republicans keep the gains which he illegally obtained?

Luke Lea said...

Make that "precedent" not "president." I am a yokel after all!

Blue@9 said...

Are there such law professors? Hell, there are entire movements behind such theories! What do you think CLS is all about?

Luke Lea said...

And in the case of those butterfly ballots, if it could have been shown that they had deliberately designed to mislead certain voters, would that be cause for action? How about the transparently partisan behavior of the Florida secretary of State? Are these all federal issues? If not, why not.

Blue@9 said...

Who are these law professors -- at Harvard or Madison -- who reject the idea that "judges should decide cases based on their best understanding of the meaning of the Constitution" and not on "whether they think their rulings would have good or bad policy consequences"?

There's a whole list here: http://en.wikipedia.org/wiki/Critical_legal_studies

I actually took classes from this prof: http://en.wikipedia.org/wiki/Mark_Tushnet

Here's a fun snippet from that wikipedia article:
"One of the more controversial figures in constitutional theory, he is identified with the Critical Legal Studies movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism"."

Oh, and when Tushnet says "socialism," he doesn't mean your namby-pamby "Obama's a socialist!" socialism, or even your "I'm a street-barricading perpetual art-student French socialist" socialism. Tushnet is a full-on Stalinist of the old school, where socialism = Marxism (the real kind). (which I always thought was hilarious, because if communist cadres ever did take over the US, Tushnet would likely be one of the first to be put up against the wall).

Smilin' Jack said...

I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

Well, of course--all judges believe that. Where would they be if they had to take the 13th Amendment (involuntary servitude) seriously and abolish jury duty?

Ann Althouse said...

Lucien said... "Not the best way to start the post. You quote a question phrased in the disjunctive, and then say that the witnesses all agreed with it. What in blazes does that mean in English?"

Sorry. You're right. I'll tweak it.

Fen said...

Luke Lea: And in the case of those butterfly ballots, if it could have been shown that they had deliberately designed to mislead certain voters, would that be cause for action?

Uh...the butterfly ballots were designed by Democrats and a sample ballot was printed in the local newspapers several weeks before the election. They were reviewed by the public without objection.

Someone has been feeding you with a shovel.

Fen said...

Luke Lea: How about the transparently partisan behavior of the Florida secretary of State?

Again with the shovel. Geez.

"The Florida secretary of state, a Republican elected official, calls a halt. She notes that hand counts are called only when there have been charges of broken machines or vote fraud. Fraud and breakdown were not charged, and did not in fact occur.

She says she will certify the election's outcome based on the original vote count and the recount that followed, plus overseas absentee ballots."

How is that "transparently partisan"?

BTW, you'll do alot better here if you back up your assertions with examples and facts. Making wild unsupported claims based on something you read at HuffPo won't cut it in this classroom.

Original Mike said...

Ahh, but Fen, Luke Lea said "IF it could be shown...".

Next up, "If pigs could fly."

Luke Lea said...

How about if it could be shown that the design of the ballot, whether purposively or not, had obviously confused the voter so that they did not vote their intention?

I am asking about the legal issues here. You guys are such partisan fiends you can't see straight.

(BTW, people who start rebuttals with "Uh, . . ." don't realize how annoyingly supercilious they make themselves sound. Not rhetorically recommended.)

Original Mike said...

"How about if it could be shown that the design of the ballot, whether purposively or not, had obviously confused the voter so that they did not vote their intention?"

That is not what you asked. This is what you asked:

"And in the case of those butterfly ballots, if it could have been shown that they had deliberately designed to mislead certain voters, would that be cause for action?"

Scrutineer said...

Luke,

Have you read all/most/any of the relevant court decisions? You sound like someone whose opinion was formed exclusively by reading partisan press summaries. I apologize if my inference is wrong.

Why did the U.S. Supremes this ruling should not be considered a precedent?

That applied only to the equal protection portion of the decision: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

My guess is that the EP argument was added solely to attract a few squishes to the majority. The language quoted above sounds to me like a tacit admission that the argument is bogus. The Article II argument alone should have determined the outcome, and I wish they hadn't gone beyond that.

(BTW, people who start rebuttals with "Uh, . . ." don't realize how annoyingly supercilious they make themselves sound. Not rhetorically recommended.)

You're right. The same applies to calling people "partisan fiends."

Fen said...

BTW, people who start rebuttals with "Uh, . . ." don't realize how annoyingly supercilious they make themselves sound. Not rhetorically recommended.

"Uh..." is used as a disclaimer, its short for "I can't believe I really have to explain this"

Fen said...

And you're still not supporting your assertions. Please provide evidence re the transparently partisan behavior of the Florida secretary of State

Or retract it.

Luke Lea said...

I've now taken the trouble to read as much of Ann's chapter in "The Final Arbiter: The Consequences of Bush V. Gore for Law And Politics" as Google books will allow. I'd say her conclusion was that it was a close judgment call and, yes, maybe the judges were influence by their private political preferences (but we will never know).

Has she written on Citizens United?

Kirk Parker said...

Hoosier,

"The entire constitution and amendments are hereby repealed; the federal government can do whatever it wants."

Mine's shorter than yours. :-)


Sloanasaurus,

"I wonder how that will look here?"

It would look like war, by which I mean war-war. Which is why I think we won't get to that point.

Kansas City said...

Pastafarian has it right.

Leahy assumed Fried (who seemed like a pretty engaging leftist) would lie like politicians do, and he was surprised when he did not. I'm not sure "they would not admit it" was Leahy. I don't care for Leahy, but he gracefully exited the subject by asking if people should disagree (implicitly lying himself, because he pretty clearly believes judges should rule based on policy assessment).

Oligonicella said...
This comment has been removed by the author.
Oligonicella said...

Luke Lea --

(BTW, people who start rebuttals with "Uh, . . ." don't realize how annoyingly supercilious they make themselves sound. Not rhetorically recommended.)

Neither is condescension.

kcom said...

I wonder if the refs in the upcoming Super Bowl should decide penalties and such based on the rule book or on the best policy consequences?

Should they observe the prominence of team colors in the stadium and take that into consideration? Or should they poll those in attendance? Or should they poll a national sample and see what the favored outcome is? Or maybe they could ask the TV networks and the NFL which team would have a greater impact if they won the game. Shouldn't their decision to call a penalty be based on a higher good? If the fans want Green Bay to win shouldn't that count for something? Or is it enough that the refs think the fans want Green Bay to win? Maybe a Green Bay win would give them the shot in the arm they need. Is that why New Orleans won? Isn't that more important, and humane, than following a pedantic rule book?

pst314 said...

Good grief, we've got people complaining again that butterfly ballots are too confusing? They are so easy to use that any child can do it. The complaints were nothing but lies, shameless contemptible lies.

pst314 said...

If most law professors think that the Constitution should be "interpreted" in order to produce whatever policies they favor, then how about starting a grassroots movement to deny the franchise to law professors? And to tax 100% of their wealth each year? It seems like a very beneficial policy, so obviously it must be Constitutional.

Professor Althouse's colleagues have lost all moral claim on any Constitutional protection of their liberties.

They should remember that famous passage in A Man For All Seasons:

"Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Eric said...

Fried should have told Leahy to fuck off. It's a tradition.

Luke Lea said...

"Luke Lea --

(BTW, people who start rebuttals with "Uh, . . ." don't realize how annoyingly supercilious they make themselves sound. Not rhetorically recommended.)

Neither is condescension."

Oops! Sorry about that.

Mc said...

Re Bob:

"Are there lawprofs who admit that the purpose of being a lawyer is to put as many hardened criminals on the street as possible - and trash you as naive or evil if you don't go along with them?"

One would certainly hope not, but when innocent and, even when guilty, it is the lawyer's job to do the best job he can for his client even if just to mitigate sentence. It is a basic human right to have a fair trial.

Best
Criminal Defence Lawyers Glasgow

Charlie Martin said...

Are there lawprofs who admit that the purpose of being a lawyer is to put as many hardened criminals on the street as possible - and trash you as naive or evil if you don't go along with them?

Do you actually know any lawyers, or do you just watch a lot of TV?

Martin L. Shoemaker said...

Luke Lea said...

Oops! Sorry about that.

And my respect for you just jumped a few notches.

Paul said...

Policy consequences for whom? Lefitist? Rightist? Socialist? Communist? Fascist?

Now that is the question!

And that is why deciding constitutional questions by anything other than what the constitution actually says IS WRONG!