Let’s start with names. Your Harvard/Yale reminder is a nice try to win over the masses–but I, too, am a populist; that’s why I think bringing unelected judges is very bad for reasons of democratic principle. For the record, only one of my six names (Tribe) teaches at Harvard or Yale–the other schools are Chicago, Minnesota, Northwestern, Stanford, and Utah. What my names have in common is eminence in constitutional law as evidenced by their breadth and depth and prominence of scholarship and frequency of citation. With one exception–Gunther–your list is not remotely comparable. Candidly, my list has probably published more than ten times what yours has (excluding Gunther); and the citation ratio is probably closer to 100-to-one. Gerry Gunther is my good friend, and utterly eminent, but he is over 70, and reinforces my point that today’s best and most active scholars see things differently than did lawyers 25 years ago.
You invoke our mutual friend John Barrett, but when he and I spoke recently, he seemed very willing to rethink the role of judges. It’s not too late for you to join him in rethinking, Ken. Especially if you want to be practical–your statute will go nowhere unless it addresses the strength and depth of opposition, and much of this focuses on the judge issue for reasons of both constitutionality and policy. The problem isn’t that your first e-mail didn’t address this; we were limited to 500 words or so (though your last posting seems closer to 900). The problem is that you don’t address the point head-on in your scholarship. You “assume” it away–like castaways assuming a rescue ship will arrive. As for what you say in your last e-mail, most of your points have literally nothing to do with the Appointments Clause–warrants, private attorneys, and grand juries are not covered by this clause at all. Judicial appointment of an interim U.S. Attorney to fill in when a temporary emergency arises–the old Attorney drops dead in the middle of a trial–is theoretically troubling and tricky, but very far from judicial appointment of a huge legal figure like Ken Starr who lasts for years. Adding up all the evidence, the overwhelming weight of constitutional text, history, and structure supports my view.
Here’s my idea: Keep judges out. I never said the system must be ad hoc. (Indeed, I say just the opposite in next week’s New Republic–I hope Mike Kinsley doesn’t mind this shameless plug for his old mag.) A permanent office of independent investigation is constitutional. It could be headed by one person (as is the FBI) or five (the FTC), or its members could be subject to Senate confirmation (as in Teapot Dome), or more informal political measures could suffice. Many cab drivers and schoolteachers have lost faith in the judges, too–the David Sentelles and others meeting in secret, doing things that no judge should ever do. I don’t blame the judges–I blame the statute.