14 May 2006

Three Political Branches

The US Constitution establishes the distinct branches of government: the executive, the legislative, and the judicial. The Supreme Court (among others) commonly refers to the branches other than the judicial as the "political branches."

There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures — an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

Hamdi v. Rumsfeld, 542 U.S. 507, ___ (2004) (Scalia, J., dissenting). Recent events, though, indicate that this distinction has become untenable… if, indeed, it ever had any currency.

This distinction assumes that the judiciary is not a "political" branch. I disagree with this assumption; to only slightly mangle Clausewitz, "Law is merely politics continued by other means." The contemporary problems with judicial nominations indicate that the "political branches" also believe that the judiciary is political… or at least partisan. Instead, we are now being treated to explicitly partisan confirmation battles for the judiciary. Now that we've seen all but the final good-bye episode of The West Wing, reality is standing in even starker contrast to that fantasy of good government.

Bartlet: You want another Brady?
Mulready: Sure, just like you'd like another Ashland. Who wouldn't? The Court was at its best when Brady was fighting Ashland.
Bartlet: Plenty of good law written by the voices of moderation.
Mulready: Who writes the extraordinary dissent? The one-man minority opinion whose time hasn't come, but 20 years later some circuit court clerk digs it up in three in the morning? Brennan railing against censorship. Harlan's Jeremiad on Jim Crow.

This is an exceptionally subtle nonacademic illustration of the First Amendment. The whole point of "democracy" and the "democratic republic" is that dissent can't be just tolerated: It must be embraced. Dissent is a core value of democratic government. And if the White House and Republican leadership in Congress can't accept that — as seems all too clear — and the Democratic leadership in Congress (or whatever passes for it) can't accept that, none of those individuals should be allowed to continue in office. Their oaths are to the Constitution, not to their parties, their constituents, or their campaign contributors. If they can't get this one right, I say we throw the rascals out. All of them.

That the Hon. J. Michael Luttig — the young conservative star of the most-conservative Federal appeals court — resigned to go do something he had never done before (in-house counsel) says a great deal about the way we treat the judiciary. It implicates the (relatively) poor pay and working conditions; the disrespect from the other two branches of government, and in particular from this Department of Justice; the impossible burdens imposed by single-issue politics; and, perhaps more than anything else, the refusal to accept in name what every political actor advocates by its actions: that the law, and resolution of particular disputes under law, is inherently "political." It took a nonlawyer TV writer to explicate this in the context of judicial confirmation, and I find that a pretty serious indictment of the legal profession.