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Lying, Law Schools and Executive Power

Above all else, prosecutor Pat Fitzgerald stressed, is the need for truth. Without truth, one cannot get to the bottom of things. Without truth the judicial system is only a broken promise. The need for honesty and truth, the view that they are the most important of all virtues, has been stressed many times here and in books this author has written. The need for trustworthiness was regarded as a linchpin by the educated in the 17th Century, was regarded then as a key aspect of morality, while “‘[l]ying was seen as incompatible with a civilized society.'”

It is, I think, a shame, even if totally understandable given the context in which he made his remarks, that Fitzgerald confined his remarks to the need for truth in our grand jury system and said the need for truth is especially important in national security matters. His point about the need for truth has much broader application than in grand juries or national security alone. But maybe now, with the country seeing the lies, malevolence and horrible conduct that have pervaded our system, and their terrible results, the way will be open to greater concern for truth on a wider basis. Unhappily, however, one should not hold one’s breath. The same opportunity existed fruitlessly after Johnson, after Nixon, after Clinton, after the extensively fraud-induced stock market debacle of the early 2000s, but was never seized. Dishonesty always would out.

It is, perhaps, not entirely a coincidence that the prosecutor who brought the indictment comes from a working class family (his father was a doorman in New York City), while the indictee is the son of an investment banker. As is said by persons like Alfred Lubrano who have studied the subject, the working class has historically placed a lot more emphasis on honesty than the white collar class (whose motto might be “whatever works”). I’ll not get into the reasons for this discrepancy here, but what Lubrano says seems very right to me. My personal view stems from having come from parents (and an extended family) who started out as working class immigrants and (I much later realized) held many working class views even when they had become middle class economically, and from having lived among the white collar class for at least 45 years. That an immigrant working class Fitzgerald would believe in truth while a Libby (and a Bush and a Cheney, etc.) lives by lies is not a surprise to those who are familiar with class differences.

This is not to say that all working class people are truthful and all white collar class people lie. Nor does one overlook the fact that Fitzgerald is a prosecutor. By the nature of their job, and regardless of the class from which they come (which historically has often been the working class, however, partly because fancy law firms were long closed to Jews, Irish, Italians, etc.), prosecutors must place a great value on truth in the grand jury process. But while the point is not a universal, and there are additional reasons for it with regard to prosecutors, still it is a by and large truth that the working class places a higher value on speaking truthfully than the white collar class.

Am I the only person who is struck by the fact that, if Alito is confirmed, the Supreme Court will have six alumni of the Harvard Law School and two from Yale, with “lowly” Northwestern having one? (Ruth Bader Ginsberg attended Harvard for two years, but then transferred to Columbia because her husband (who decades later was instrumental in getting her appointed to the Supreme Court) joined a New York City law firm, the now famous Weil, Gotshal & Manges.) That is to say, am I the only one who is struck by the fact that the high court has become the plaything of a tiny number of the most “elite” schools. Not even other law schools with pretensions to eliteness are represented: there is nobody from Chicago, nobody from Stanford or Penn or Virginia, etc., etc. And as for having anyone from a so-called non-elite school — like SMU, for example — well, you can just forget it (along with Harriet Miers).

Am I the only person who thinks there is something wrong here? The only one to wonder about the extent to which the “elite” law schools, including ones other than Harvard and Yale, may populate, even dominate, the lower federal court benches too, as well as two of them dominating the Supreme Court? Did everyone who is worthwhile go to the elite schools? How did those schools become so dominant even though the Senate (and the House), while disproportionately comprised of lawyers, and perhaps even ones from “elite” law schools — I really don’t know — do contain lots and lots of people from other schools?

You know, law schools generally tell their students — it is sometimes propaganda, of course — that a law degree will enable them to get ahead in a whole variety of ways. One thing we were never told in Ann Arbor, however, and one thing that most law students anywhere probably are never told, is that there are large elements of this country that are run by Harvard and Yale (and Princeton, too, though it doesn’t have a law school). When it comes to the east, and the national government, and the highest reaches of the judiciary, you can pretty much forget it if you are a lawyer but not a graduate of Harvard or Yale. So I elaborate my question(s): why is this, isn’t it bad rather than good, and doesn’t it make much of what we are taught a lie?

Now let me get down to cases in a different but inevitably intimately related problem, the nomination of Sam Alito to be a Justice of the Supreme Court. Alito may be a very good candidate, albeit people think a very conservative one. He is smart, accomplished, etc. But it seems there are also some questions about his candidacy. He possibly could vote to overturn Roe v. Wade. He apparently has issued some opinions that are antagonistic to civil rights and to the powerless of society. So conceivably he could be bad for societal and human progress. He may not be friendly to broad Congressional power to remedy ills of society, a problem much on the minds of Senators.

And then there is another possible problem, one on which I’ve seen only a relatively small amount of discussion in the media. Where does Alito stand on executive power? Is he for more of it at the expense of Congress? Or is he for more Congressional power at the expense of the Executive?

It has been said here before that executive power is one of the questions of the future, a question pregnant with consequences, maybe disastrous consequences, for America. As said before here and elsewhere, this Administration seeks to expand executive power to an extent that would be exceptionally dangerous, both at home and abroad. Does the President, in the name (or under the pretext) of national security, have the power to fight wars as big as he wants, for as long as he wants, any time he wants, against whomever he wants, without declarations or very specific authorizations of war from Congress. Can the President withhold from Congress crucial documents bearing on vital matters? Can he declare previously available documents to be unavailable? Can he decree that people can be tortured? Can he decree that people shall be held in jail for the rest of their lives without trial? To this Administration the answer to these and related questions is always yes. These people are dangerous to our liberties.

The irony is, of course, that this Administration claims to favor the constitutional theory of so-called originalism. The truth is, however, that these people are anything but originalists. The originals — the founding fathers — were deadly afraid of too powerful an executive, the more so having seen George III. They set up a government in which the legislature was to be supreme, not the executive. The drive for executive power launched by this administration — following, to be sure, in the presidential footsteps of many of its predecessors, Democrat and Republican alike and including Johnson and Nixon — is not an originalist idea. It has far more in common with the drive to executive power of the German National Socialists, the Italian Fascists, the Russian Communists, the two bit dictators of Africa, and the despotic tyrants of the Arab middle east, than with the views of America’s founding fathers.

And this Administration continues marching forward in its drive for executive supremacy. Secrecy is vital to a powerful executive — the executive may not be able to do what it wants, may not be able to run torture camps abroad, for example — if relevant matters are not kept secret and thus free of potentially withering public opinion and even possible Congressional action. Harriet Miers, though in fact savaged unto withdrawal by Bush’s conservative friends, gave as her reason the need to keep executive documents secret. Libby was replaced as Cheney’s counsel by a right-wing nut named David Addington, who believes in unlimited Presidential power, has been for war, torture and secrecy, and may be more evil and dangerous than even John Yoo was.

So there are lots of areas in which the Senate should learn Sam Alito’s views before approving him as a Justice. From abortion, to Congressional power, to torture and secrecy his views may, and in some cases, like abortion, almost certainly will have dispositive effect on the Supreme Court.

But, it is objected, Senators cannot question a nominee about his political views, cannot ask him what he would do in specific cases, cannot do anything other than determine his legal competence and his integrity. This, however, is so much bushwa, and only bushwa. It is a recent invention, made as a result of the failure of the Bork nomination, to try to avoid the failure of conservative to reactionary Republican nominees (and Democratic ones too?) by preventing the Senate and the country from learning of possible right wing, sometimes nutbag views. What better way to avoid defeat due to right wing nut job views than to ordain that the views cannot be plumbed. And this latter day innovation designed to place conservatives and/or reactionaries like Thomas and Roberts on the Supreme Court, and to avoid the defeat that would befall them if their views were plumbed, has previously been readily accepted by Democrats, who have meekly fallen into line.

Let there be no mistake about it. Defeat and rejection of Supreme Court nominees because of the Senate’s disagreement with their views is as old as the Republic, going back to its earliest days. This is plumbed in chapter five of Laurence Tribe’s 1985 book called God Save This Honorable Court. (Yes, that book, the one in which Tribe, or more likely student ghostwriters, plagiarized from Henry Abraham’s prior work. Of course, plagiarism is not the same as incorrect.) Chapter five makes clear that on many occasions the Senate has forced the withdrawal of or has rejected a candidate because of his views. Bork — rejected after and some think in major part because of, Tribe’s book — was only the latest in a long line.

This, of course, raises the question of what questions Senators can ask a nominee in order to determine his or her views. As near as I can tell, Tribe’s book does not bear on what questions have been asked in the past, although he seems to make clear in chapter six that he would ask broadly searching ones. And it would seem to me — I know of no reason not to think — that any questions bearing on reasons, theories and facts relating to a subject are fair ground to be asked in order to find out a nominee’s views. This is no less true when the potential stakes are as high as with Alito’s nomination. It is also no less true when one realizes that, despite all the cant about the impropriety of asking about cases, nominees, as Roberts did, seem not to stickle about discussing specific cases, at least not prior specific cases, when they think this is to their advantage.

You know, the fact that a nominee has to get down to cases (to make a pun) does not mean that he will be obligated to adhere to what he tells Congress when an actual case comes along. If a litigant can persuade him to a different view, he will be free to adopt it. Indeed, the nominee’s statements to the Senate will aid a future litigant because he will know what he has to face and overcome. If judges are as open to logic and reason which undermine their prior views as they and their supporting lawyers like to claim — and if they are not open to contrary logic and reasons, then the judicial system is pretending falsely — then the argument that answering specific questions in a hearing constitutes prejudgment of future cases is in major part baloney. If the claim of being open to reason has truth, then to answer Senators’ questions is no more a prejudgment of future cases than rendering a decision on an issue in one case is prejudgment of the next case on the issue. Indeed it is less of a prejudgment than is an opinion, because a statement to the Senate need not be followed if the judge becomes persuaded to a different view in a future actual case, whereas a statement in and governing a judicial opinion is binding in the next case as a matter of precedent. Statements to the Senate will simply mean that a future litigant won’t be blindsided, will know what he or she needs to respond to.

Asking judicial nominees questions about present and potential future cases is, moreover, something that has been done. Thus, it has recently been reported that in private meetings Senator Durbin asked Alito about a previous abortion case that Alito participated in and Senator Cornyn asked Alito about a prior church-state case that Cornyn himself had argued and lost in the Supreme Court. So Senators may be doing privately what publicly has been pretended to be impermissible.

I also note that, in a recent discussion on the subject of asking questions of Supreme Court nominees at the Boston Inn of Court, one of the scores of persons in attendance said from the floor that panels of lawyers that assess nominees for local state court judgeships often ask them about specific “hypos”, i.e., about specific hypothetical cases that are put to them. To the extent that this is done in Massachusetts and elsewhere, it is further support for the idea of asking Supreme Court nominees to likewise answer specific questions.

Perhaps most importantly of all, in a recent (October 24th) letter to Harriet Miers while she was still a nominee, Senator Specter told her she would be asked to answer very searching, very specific questions about executive power, questions which he then set forth. As readers of this blog may remember, my respect for Specter is not unlimited. But in the October 24th letter he and his staff did a capital job (to make a bad pun (or perhaps a pun about badness).) The questions they put were terrific, and included ones relating to the length of time detainees can be held, the power to detain them on foreign soil as contrasted with the power of habeas corpus and with the jurisdiction of federal courts in such instances, whether Congress unconstitutionally delegated its war-deciding power to the President when it authorized the use of force in Iraq, whether the President as commander-in-chief has the constitutional authority to take us to war, whether the Korean and Viet Nam wars required a congressional declaration of war, and when an international agreement requires the consent of the Senate under the treaty clause. The questions Specter told Miers he wanted her to answer are so specific and detailed, and such an excellent example of the kinds of questions that Senators should ask a Supreme Court nominee, that his letter of October 24th is appended below to this blog.

In addition to appending Specter’s questions to Miers, it may be very useful to set forth several other questions that exemplify the types of questions that Senators should ask. Before I do so, however, let me first say that it would be helpful if, contrary to blowhard Senatorial norms, the questions were kept as short as possible, so as to provide clarity for the media and the people (although this may not always be possible if hypothetical cases are put to the nominee). Having questions written out in advance would be helpful in keeping them short. Here are some examples of a few of the possible additional questions for Alito:

1. A case comes before you asking that Roe v. Wade be overturned. Will you vote to overturn it or will you uphold it? What will be the reasons for your vote?

2. Without a Congressional declaration of war or a specific detailed Congressional authorization directing the armed forces to be used against Syria, the President sends ten divisions to attack Syria on the ground that this is a preventive war because Syria intends to attack American forces in the Mideast. An American soldier ordered to participate in fighting claims that the President’s war is unconstitutional and he therefore cannot lawfully be ordered to fight. Will you uphold his claim? Give the reasons for your vote.

3. The same hypothetical as in 2 above, except that, instead of attacking Syria because he says it intends to attack American forces, the President intends to attack Iran because he says it is assisting terrorists.

4. After two months of joint hearings on the subject, Congress makes findings saying that so called “elite” private universities have structured their admissions programs in ways that automatically tend to exclude most minority youngsters from working class backgrounds, especially due to the schools’ extensive reliance on the SATs. In the law incorporating these findings, Congress orders that private universities cease using the SATs (which automatically would mean a more costly, labor intensive admissions process). In enacting its law, Congress states that it is basing the statute on Section 5 of the 14th Amendment, which allows it to enact laws to enforce the amendment. A private university sues, saying that Section 5 does not give Congress the power to do what it did. How will you rule? What are your reasons?

5. The same question as number 4, except that Congress relies on its spending power, and the university is receiving 300 million dollars per year in federal funds.

6. Congress enacts a law making it a crime to knowingly carry any semiautomatic or automatic weapon in or within 1,000 yards of any grammar school, high school or college. When enacting the law, Congress finds that such weapons pose a danger of mass deaths, as evidenced by incidents from the Texas Tower case of the 1960s to the Columbine case. A person convicted under this law claims the law is unconstitutional because, under the constitution, the carrying of weapons in or near a school is a matter for state power, with Congress having no constitutional authority over it. What is your ruling? What are the reasons for your ruling?

7. A large company enters bankruptcy proceedings, in which it is allowed to reorganize and to wipe out two-thirds of the pension payments owed to tens of thousands of present retirees, but which does not affect multimillion dollar golden parachutes given to high executives shortly before the bankruptcy. A retiree whose pension was diminished sues, claiming the bankruptcy proceedings have wiped out the greater part of a vested contractual right he possessed after 30 years of working at the company, and has left him and his wife destitute because his remaining pension and social security payments are insufficient to support them, especially in view of their high medical bills. The company and the federal government say it is constitutionally permissible to wipe out two-thirds of the retiree’s pension in bankruptcy proceedings. Which way will you rule? What are your reasons?

8. A state declares that, because of money problems, it will cut its pension payments to former employees by two-thirds. The former employees, being under a state pension program, receive no Social Security. A former employee claims the state has breached a vested contractual right for which he worked for 20 years, and has left him destitute. The state says it cannot be sued by the employee because it has sovereign immunity under the eleventh amendment. Which way will you rule? What are your reasons?

9. A state sets aside a pool of three billion dollars for stem cell research by private companies in the hope that this will lead to cures for numerous death dealing diseases. The Federal Department of Education then cuts off 100 million dollars of aid that it gives to medical research facilities at the state university hospital, saying that this 100 million dollars in aid is discretionary, and that DOE is exercising such discretion to cut off the 100 million dollars because the administration is against stem cell research. How will you rule? What are your reasons?

10. A state decides on the basis of very strong evidence that hashish should be made available to people in the state who suffer from a very painful disease, because hashish eliminates their pain. The federal government says the state cannot do this because hashish is banned by the FDA. How will you rule? What are your reasons?

You don’t have to be too smart to realize that most or all of these questions are to some degree, sometimes extensively, drawn from real life occurrences or potential real life occurrences. Were these and other questions of vital importance to present-day and future America to be asked of Alito or any other nominee, were concrete answers and reasons to be demanded upon pain of an adverse vote on confirmation, and were Senators to engage the nominee in serious discussions about the answers and reasons instead of engaging in the horrendously time-wasting, blowhard bushwa that too often permeates Senate hearings, the public and the Senate would have a much better idea of whether Alito (or anyone else) should be confirmed as a Justice of the Supreme Court, where he can deeply affect this country for the next 25 years or more.*

Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu.

 

 

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Lawrence Velvel, dean of the Massachusetts School of Law, is the author of Thine Alabaster Cities Gleam and An Enemy of the People. He can be reached at: Velvel@VelvelOnNationalAffairs.com

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