Restoring the Domain of Politics

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An edited version of this article appeared under the title “The Law” in The American Enterprise(Nov.-Dec.2001)
Restoring the Domain of Politics

by George Liebmann
The Bush administration must determine what its policy will be with respect to the federal judiciary. Thus far, there is no reason to suspect any departure from the approach of other recent Republican administrations: personnel is policy. The principal
strategy for curbing excesses by judges and advocacy groups will be strict control of the appointment process in an effort to change the judiciary by appointing the politically reliable.
This approach has obvious limitations. Given the alternation of the parties in office and the continued dependence of the present Democratic party on identity politics and the advocacy groups exploiting it, over time such a policy can be only half successful. In addition, concentration on judicial appointments
rather than judicial structure and powers is a doomed approach for other reasons. A closely divided Senate puts a premium on finding ‘stealth candidates’ who almost by definition are persons without particularly strong convictions. Confirmation controversies are apt to be protracted, ugly and distracting, consuming time and energy that would otherwise be devoted to the administration’s legislative program and personalizing and
polarizing politics. The end result is the seating on the bench of persons with a number of things in common: they are narrowly educated lawyers, members of the upper middle class, proteges of the like-minded on courts and law faculties, and products of bureaucratic firms and agencies. Today’s lawyers are not the most venturesome and entreprenurial folk; over the long term, conformity to the fashionable zeitgeist is to be expected of
them. For this reason the British barrister and historian Peter
Calvocoressi, in opposing judicial review for his own country, suggested 40 years ago that it can readily become a vehicle for “making the law so much more inflexible as to deflect it from the service of society to the service of a class.”
Yet Republican discontent with judicial activism is fully justified. The British law professor Martin Loughlin in his book
Sword and Scales has recently written of the growing tendency of law to devour politics, to the detriment of both methods of adjustment and decision. The dominance of legalism means the dominance of uniformity and centralization, a rigidification of politics and government, a loss to initiative and citizenship, a polarization in opinion and alienation of the characteristic losers in litigation, and ultimately the corruption accompanying most concentrated power.
Past efforts to limit judicial excess have not been so naive as to rely upon the appointment power. The nationalism of the Marshall court was met by the anti-injunction act of 1793 and the Eleventh Amendment, the bigotry of Southern state courts by
removal statutes and provisions for the appointment of federal voting registrars, the business bias of the judiciary by the Johnson Act protecting public utility commission rate orders, the Tax Injunction Act and the 16th Amendment protecting state and federal income taxation. Interference with the labor movement was countered by the Clayton Act provision prohibiting ‘John Doe’ injuctions, now part of the Federal Rules of Civil Procedure, the
Norris-La Guardia Act, and state workmen’s compensation laws. Large areas of controversy–broadcast regulation, social security disability, zoning and nuisance regulation have been removed from the courts and confided, in the first instance at least, to administrative agencies. Federal habeas corpus has been curtailed and the enforcement of state penalties such as capital punishment thereby facilitated; the same is true of litigation by prisoners. These devices, whatever the merits of the particular policies in whose interest they have been deployed, have been far more effective than new judicial appointments in curbing unwanted
judicial interference with public policies. Indeed, resort to curbs on the judiciary is almost an index of the seriousness of reform movements.
What excesses require correction? Most of them do not arise in the context of ordinary criminal prosecutions, where the judiciary’s role in protecting defendants against factual error or state persecution should be held inviolate. Nor do they arise in the general run of private civil litigation between particular litigants. Both these activities involve what Aristotle–and Edward Levi after him–described as corrective or commutative
justice. It is rather in the realm of distribtive justice where problems arise–in efforts to invalidate legislative compromises, to redistribute large sums of money from class to class or group to group, or to so arrange judicial processes as to characteristically disadvantage particular groups or interests.
A number of current rules and practices are the subject of
justified disquiet and should be addressed directly rather than only through judicial appointments:
The constitutional litigation process
Where advocacy groups like the ACLU attack the validity of state statutes or local ordinances, a grave imbalance exists. Advocacy groups can wage coordinated litigation campaigns in multiple towns and states and can spend months on expert preparation of their cases. Typically such cases are defended by inexperienced and young county or school board attorneys or state assistant attorneys general , who are given at most 30 to 60 days
to file their formal answers to long-prepared complaints. More
frequently, immediate temporary restraining orders or temporary
injunctions are sought and granted against unprepared government
officials, which nullify and discredit state and local laws and delay their effectiveness for months and years. A typical example was supplied by the abortion regulation legislation in Pennsylvania sponsored by the administration of Gov. Robert Casey and modelled after legislation already upheld by the Supreme Court in the Webster case. Notwithstanding that the ultimate outcome of the case was a foregone conclusion, a sympathetic
district judge was found to enjoin the statute, more than a year passing until the injunction was disssolved by a panel led by the late Judge Collins Seitz, one of the most distinguished of modern federal judges. Since nearly a thousand federal district judges throughout the country are equipped with the power of injunction and many preside in single-member districts, judge-shopping is easy. Even in ‘random assignment’ districts, emergency
applications can be presented on days when a judge of known biases is chambers judge, Some judges, the late Judge Miles Lord in the federal district court in Minnesota being a notorious example, operate virtual injunction mills. Judicial eccentricity is ineviable and tolerable when the cases of particular individuals alone are at issue; a reversing judgment wipes the slate clean. Major political effects result where such judges are
allowed to make decisions on questions of public policy of national import. For this reason, most foreign systems restrict judicial review of legislation either to a single constitutional court, as in France and Germany, or to a handful of appellate courts, as under the recent British legislation adopting the European Convention on Human Rights. An analgous reform in the American federal system would restrict the power to enjoin
legislation to the federal Courts of Appeal acting en banc, while
allowing the District Courts to try cases and issue fact findings. Such action would not be unprecedented. Congress, in statutes like the Civil Rights Act of 1965 and the Welfare Reform Act of 1996 has frequently channelled constitutional litigation to particular federal courts., and prior to the Mandamus and Venue Act of 1962 most litigation attacking federal statutes and regulations was required to be brought in the District of Columbia.
In addition, the requirement of Rule 52 of the Federal Rules of Civil Procedure that decisions of federal district courts be
accompanied by findings of fact and conclusions of law is frequently honored in the breach in constitutional litigation, rendering appellate review imprecise and difficult. The El Paso case in the Supreme Court strictly enforced this standard in antitrust cases; no statute is necessary for the courts to be required to do the same in cases attacking statutes, ordinances, and regulations. Plainly also the availability of preliminary
relief should be severely limited, as it has been in labor injunction cases. States and localities should be given at least 120 days to respond to constitutional complaints and there should be a central repository of constitutional complaints and possibly required publication of short summaries in the Federal Register to permit adversely affected governments and groups to respond to litigation campaigns. Justice Ruth Ginsburg, herself a former ACLU attorney, has recently lauded the contribution made by three conservative legal foundations in improving the litigation process in constitutional cases by providing competent defenses otherwise absent.
Fees and fee shifting
The Civil Rights Attorneys’ Fees Act which requires jurisdictions successfully sued to pay the counsel fees of even
partially successful plaintiuffs while providing for no reverse fee shifting against unsuccessful plaintiffs has become a major weapon in the hands of advocacy groups., particularly when claims are asserted against small and financially weak municipalities and school districts. The threat of such fees is used to terrorize public entities into settling cases or abandoning appeals. As I write, the Annapolis city council is being urged
not to appeal invalidation of a drug-loitering ordinance, the ACLU asserting that its lawyers are entitled to $200,000 in fees for work in the trial court and will be entitled to more for work on appeal. By heavily publicizing such an unappealed fee award against a small school district in New Jersey, the ACLU has deterred most of the nation’s 15,000 school districts from experimenting with careful programs of random drug-testing of
students, notwithstanding the success of such programs in the military and in private industry. The availability of fee awards to students contesting school discipline under the Individuals With Disabilities Education Act has done much to break down student discipline in public schools and has resulted in multiple fee awards of staggering size against the hard-pressed schools of the District of Columbia. Plainly, unless a presumption of unconstitutionality of all government action is to be the rule, this provision requires elimination. Public causes of genuine
merit can be advanced by advocacy groups using and raising their own funds, as with the labor and civil rights movements, not by constituting them as parasites upon government error. If fee shifting is to be permitted at all, it should be two-way shifting and the courts should scrutinize fee claims much more intensively than they now do; celebrated instances of abuse include the multi-million dollar claims in the women’s rights cases against
VMI and The Citadel and those claimed by Prof. Laurence Tribe in a rather simple case against a Massachusetts liquor board. Fee shifting should be confined to cases of intentional wrongdoing, as distinct from those involving debateable and undecided issues.
Lawyers for the poor
The effort in the 1996 welfare reform act to rein in the federal legal services program has fallen victim in the Supreme Court to the appealing proposition that lawyers, once hired, shold not be prevented from making available arguments. One may still question the decision to attempt to foster what Geoffrey Hazard once satirically described as “social justice through civil justice” by creating a federal program staffed by young,
politically engaged lawyers, an American Narodniki. Bureaucratic abuse of the poor can fruitfully be addressed through less adversary methods. When the legal services program originated during the Johnson administration, a different and more hopeful model for assistance to the poor in navigating society was rejected. A study prepared by Prof. Alfred Kahn of the Columbia
School of Social Work suggested the creation in the United States of a network of Citizens’ Advice Bureaux on the British model. These are manned by adults, not overgrown children, of politically diverse rather than uniform persuasions, who are knowledgeable in varied disciplines, not only the law, and who are civic volunteers, not ill-paid professionals. Their objective is to interpret social legislation, place individuals in contact
with social agencies, relatives and others who might be of help to them, and in general to reintegrate the poor into society rather than to assist them in litigating against it. They perform social work as it was originally conceived by Octavia Hill, Josephine Lowell, Mary Richmond and others before its capture first by psychoanalysis and then by marxianism.
A second road not taken was that proposed by Judge Henry Friendly in a speech entitled “Some Sort of Hearing” published in the University of Pennsylvania Law Review in 1965: the ombudsman. Most bureaucratic mistreatment of poor people results from maladministration: errors that would be corrected if the public and responsible officials knew of them. These mechanisms,
familiar in Scandinavia and on the Continent and to some extent in Britain hasve been scarcely explored in the United States, notwithstanding the efforts of Judge Friendly, the late Walter Gellhorn (editor of Ombudsmen and Others), and Prof. Kenneth Culp Davis, the leading American writer on administrative law. The Bush administration will be justified in pruning legal services if it fosters these alternatives.
Monetary class actions
The mushrooming growth of monetary class actions and the
billions in attorneys’ fees associated with them also requires
attention. These were the product of a little-noted amendment to Rule 23 of the Federal Rules of Civil Procedure in 1966 and new mostly judge-made doctrines relating to products liability These have given rise to huge attorneys’ fees, many recycled into political contributions to defenders of the tort system. The impulse for thse developments commes from the lack of
administrative systems of adjudication like those provided by the
workmen’s compensation laws and lack of public disability compensation, common in Western Europe and in more rudimentary form in the legislation of 3 or 4 states, including New York. Such additions to the welfare state are expensive, but no more so than the burgeoning costs of the tort system. They have the advantage that most of the benefits go to claimants rather than
lawyers and ‘expert’ witnesses. Yet when the American Law Institute undertook to study these options in the late 1980s, its initiative was stifled by opposition from the trial bar. A responsible Justice Department must venture where a private organization did not.
Structural decrees
Finally, a good look should be taken at various forms of
structural relief granted by the fderal courts in civil rights cases. Such injunctions had their genesis in the ‘massive resistance’ to desegregation of Southern schools. Aided by an influential treatise by Prof. Owen Fiss of Yale, use of the federal injunction has burgeoned, and ‘special masters’, almost invariably people with political commitments, have been appointed to manage or supervise schools, jails, mental institutions and
even, under a singularly dangerous and ill-advised recent piece of legislation, police forces. These decrees are frequently entereed by consent, where county attorneys or state attorneys general are politically sympathetic to the plaintiffs, or with a degree of opposition that would do
credit to the Chicago Black Sox. Measures of this sort affecting public agencies were unknown until a district court case involving the Pennsylania Association for Retarded Children in 1972; they since have burgeoned. Plainly state and local officials should not be permitted to thus bind their elected successors and the doctrines of finality appropriate to consent
decrees against private persons and entities are not appropriate when entered against officials who the public is supposed to have the right to replace at elections. Yet there has thus far been too little questioning and limitation of these new developments, which further devalue local democracy. In this writer’s Maryland, the ACLU obtained a federal consent decree requiring controversial dispersion of public housing which provides that
certain housing vouchers cannot be used in neighborhoods more than 29% black, a provision against which Baltimore’s current mayor periodically fulminates. In addition, the same organization obtained a nominally litigated state court decree purporting toi require hundreds of millions in new school spending, the decree being entered by consent, with one sentence of findings, in a case in which adversely affected jurisdictions were denied leave to intervene. The public may submit to such abuses in prosperous
times; in more turbulent ones they endanger democracy, public order and the rule of law.
The new administration cannot behave as though legal reform begins and ends in its personnel office. It must devise and
promote more legitimate ways to address grievances, of which advice bureaux, ombudsmen, and administrative compensation schemes provide three examples. The new administration must also sponsor statutes curtailing federal criminal jurisdiction, which was allowed to explode during the Clinton administration, and should also act to curb civil discovery abuse, so profitable to the private bar. There must be vigorous and systematic
questioning of judicial authority to enforce consent decrees and
structural injunctions binding future officials.
What above all else is required is the restoration of a more appropriate division of labor between law and politics. This requires a return to normal politics, a recognition that politics is an instrument of compromise and not a device for acquiring absolute power; an end to the 24-hour war room and the perpetual campaign. Without a climate of reasonableness, political
grievances cannot be effectively redressed, and the courts on which we rely for fair trials and corrective justice will be increasingly perceived as partisan or corrupt. —
George Liebmann, a Baltimore lawyer, is a TAE contributing writer. His latest book is Six Lost Leaders: Prophets of Civil Society(Lexington Books,2001).

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