News flash: It’s 1999, not 1974. Ken, you’re stuck in a time warp. You invoke some once-big names in constitutional law in support of your position, but many who supported the law a quarter-century ago–like Freund and Kurland–are dead and many others are inactive. (As for your law school deans, how many were towering con law types as opposed to p.c. signers-on?) If you want to play the name game, let’s look at who’s who in con law today, and where they stand. Harvard’s Larry Tribe supported the statute originally; he has now commendably confessed error in the cyberpages of Slate. (Again, see my “Dialogue” with him.) Stanford’s Kathleen Sullivan called for the death of the statute on the Op-Ed page of yesterday’s New York Times. Chicago’s Cass Sunstein originally supported the law, but I’m pretty sure that he, too, now sees the light. Now turn from these leading constitutional liberals to today’s leading constitutional conservatives. Northwestern’s Steve Calabresi, co-founder of the Federalist Society, thinks the statute is monstrous, as does Minnesota’s Mike Paulsen, the conservatives’ rising star; and I suspect Mike McConnell, perhaps the most renowned conservative scholar in America, agrees. So I challenge you to name five prominent and active con law scholars who still support the statute as both constitutionally sound and wise (even with your milquetoast amendments). Remember, the statute should die unless it’s both constitutional and wise.
I repeat that those who supported the statute did not squarely confront the evidence and arguments on the other side–and neither have you. So–name-game aside–what’s your substantive answer to the obvious points that judges should not pick generals or prosecutors, or powwow with senators in secret, and that Ken Starr is not inferior to anyone? If he’s inferior, to whom? How can you say with a straight face that such a hugely powerful figure is in a real sense inferior?
How then to explain the early support for the law among (some) scholars and judges? First, constitutional lawyers cared less about text, history, and structure then than nowadays. Second, many failed to see how the judicial role would be completely warped by the statute. Third, they obviously had no experience with the statute to see whether its critics’ predictions were on the mark. Today, it’s clear that, empirically, the critiques were right, and so many smart people have changed their minds given the actual track record. (You should join them.) Fourth, the Supreme Court’s Edmond case lays down a completely different general test for “inferiority” and links it to large issues of democratic accountability. This is an important change in legal doctrine and outlook.
I disagree with you about 1974–different football games may have changed exactly how the facts would come out, but large political forces were working to keep the spotlight on. As for an alternative statute, look again at the last paragraph of my last e-mail, building on the Watergate and Teapot Dome models. Keep judges out of appointments. Agreed?