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Convictions contributors Dahlia Lithwick and Doug Kmiec took to the airwaves today to discuss the California gay-marriage decision on NPR's On Point program. The show also included Crystal Carreon from the Sacramento Bee; Geoff Kors, executive director of Equality California, a gay rights advocacy group; and Brian Brown, executive director for the California chapter of the National Organization for Marriage. The segment is available online, and you can read more here from last week's discussion in Slate.
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Diane, Adam, I wonder if the difference between you is more about the meaning of the term "lawyer's lawyer" than about Chief Justice Roberts.
As I have heard the term used, a "lawyer's lawyer" is a lawyer whom the top members of the bar see as a top member of the bar. If that's the definition, then I agree with Adam about John Roberts. Roberts was not only a lawyer's lawyer, he probably was the lawyer's lawyer of the Supreme Court bar of his generation. I clerked for Justice Kennedy in OT2003, and Roberts was already a legend as an advocate. People used to say that Waxman and Clement were good, but too bad you missed John Roberts (who by then was already on the D.C. Circuit). According to rumors circulating among the Supreme Court bar, the justices of the Rehnquist Court generally saw him as the finest advocate of his generation.
My sense is that Diane's definition is different. Diane, please correct me if I'm wrong, but my sense is that you see a "lawyer's lawyer" as more of a skilled legal technician who lacks a clear ideological agenda. Under that view, as I understand it, a lawyer's lawyer is someone who is interested in the law as law and is not on any particular ideological "team"—and, perhaps implicitly, would follow that law faithfully without bias if confirmed as a judge. I tend to agree with you that this lack of an agenda is part of the term "judge's judge," but I don't see as implicit in the term "lawyer's lawyer."
I don't know if either definition is necessarily correct or more common. But I wonder if the disagreement between Adam and Diane is mostly about finding the right definition of the term. Also, perhaps it's worth noting that both Roberts and Stevens pass the "lawyer's lawyer" test with flying colors under the first standard, but that there would be sharp ideological divisions today about both Roberts and Stevens under the second one.
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The Justice Department released its inspector general report (PDF) today clearing the FBI of most wrongdoing in connection with the coercive interrogations (read: torture) of prisoners at Guantanamo Bay, Cuba. For the most part, the report concludes that FBI agents did the right thing by objecting to the interrogation methods they saw that were abusive, and that FBI agents did not participate in these questioning sessions. However, the report faults senior leaders at the Justice Department and FBI for not giving clearer guidance to their agents in the field, allowing some special agents to be confused about "how to draw the line between behavior that was 'abusive' or merely harsh, such as the use of loud music and stripping."
According to the Post:
"The FBI could have provided clearer guidance earlier and pressed harder its concerns about detainee abuse by other agencies," Fine said. "But we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse."
Interrogation practices—including the use of dogs, sleep deprivation and simulated drowning or waterboarding—repeatedly created friction between FBI agents and military leaders. FBI Director Robert S. Mueller III has stressed that the bureau prefers to build rapport with detainees as the most effective way of eliciting accurate information from them.
In congressional testimony last month, Mueller hinted that the FBI's hands were tied in part by opinions from the Justice Department's Office of Legal Counsel, which approved several of the coercive interrogation strategies.
Seems to me like it would have been tough for the DoJ and FBI to issue better guidance while this guy was calling the shots. But that's just me.
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Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."
Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.
The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.
With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.
Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.
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Diane, we're in full agreement on the point that the nation would benefit from the appointment of a "lawyer's lawyer" to the Supreme Court. While I can think of a number of federal judges (and even a couple of law professors) who I think would do a fine job on the federal bench, I agree that a longtime practitioner would bring a degree of practical judgment and experience that would benefit the court (and the public as it attempts to follow the laws interpreted by the courts).
That said, after reading your post, I'm not sure how Chief Justice Roberts doesn't squarely meet your standard. His lawyering skills were widely admired by the bar; he had no ideological ax to grind; and his tenure on the court has been marked by collegiality, wit, and a refreshing writing style. What more would a "lawyer's lawyer" or "judge's judge" have to do, beyond what Chief Justice Roberts did in his practice and on the federal bench, to satisfy the standard you envision?
And given that John McCain—neither an ideologue nor a reflexive partisan—repeatedly invokes Chief Justice Roberts as one of his ideal judges, isn't there abundant cause to conclude that, if the electors choose McCain, then "the person whom voters entrust with the filling of federal judicial vacancies will give priority not to 'partisan political concerns,' but rather to 'dignity' and 'intellect,' ideally tempered with 'charming wit and sense of humor' "?
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It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.
This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970. Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."
Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)
Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:
... I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...
One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."
("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)
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