As a loyal member—well, as a member—of the District of Columbia Bar for more than a quarter of a century, I was aware of the tension between advocacy and honesty. But until the recent controversies over Supreme Court nominees, I was unaware of the scope and depth of my professional obligation to avoid telling the truth. Sometimes this merely means evasion, but often it encourages or even requires outright lying. In other lines of work—journalism, for example—the truth is a standard that is not always met. But judging from the arguments made successfully for John Roberts and Samuel Alito, and unsuccessfully for Harriet Miers, the truth is something a good lawyer must constantly struggle to overcome.
Suppose you are a star at law school and start your career as a Supreme Court law clerk. Roberts clerked for his predecessor, William Rehnquist, who had clerked for Justice Robert Jackson. That was in 1954, the year of Brown v. Board of Education. Rehnquist wrote Jackson a memo saying, “I realize that this is an unpopular and unhumanitarian position … but I think Plessy v. Ferguson [the precedent upholding racial segregation] was right and should be re-affirmed.” Asked about this at his own confirmation hearings, Rehnquist said he was just writing what Jackson might say if Jackson favored upholding racial segregation, which Jackson did not and neither did Rehnquist, according to Rehnquist. This established the principle that you don’t need to really believe anything you write as a Supreme Court clerk. (The only alternative principle would be that Rehnquist was against Brown and a liar to boot.) At Roberts’ hearings last year, his role as a Supreme Court clerk barely came up. What would be the point?
So life goes on and now you’re a young lawyer applying for a job. Let’s say you’re in the Justice Department, and you want a promotion to deputy assistant attorney general. It’s 1985, you’re Sam Alito, and Reagan is president. You write that “the Constitution does not protect a right to an abortion,” and you tout your past efforts to overturn Roe v. Wade. You say this is work “in which I personally believe very strongly.” A non-lawyer might leap from this to the conclusion that in 1985, at least, Alito opposed abortion and wanted to overturn Roe. But that is not the case at all. He told skeptical Democrats 20 years later that he was just “seeking a job.” The scope of this “seeking a job” exception to the general obligation to tell the truth is not clear. Does it, for example, cover a nominee “seeking a job” as a Supreme Court justice?
Even when not seeking a job, it appears that Justice Department lawyers have responsibilities far weightier than telling the truth. Roberts also served in the Reagan Justice Department and wrote briefs taking the conservative side on a variety of hot issues such as abortion. He signed a brief declaring that Roe v. Wade was “wrongly decided and should be overruled.” But, as the conservative Committee for Justice reassured liberals during Roberts’ confirmation, “Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.” Alito, in a similar job, described himself as a “line attorney,” invoking an image of lawyers along a conveyor belt, tightening an argument here and adding a precedent there to whatever legal and moral claptrap came along.
Legal briefs filed for a client are one thing, but internal memos to a client are another. Or so you might think. But I’m afraid not. Roberts’ defenders—his defenders—insisted during his confirmation that memos he wrote to his boss when he worked in the White House itself should not be taken seriously as a reflection of his true beliefs. The memos gave the appearance of urging the Reagan administration to take a more conservative line on issues such as school prayer and employment discrimination. But White House Press Secretary Scott McClellan revealed that these were actually Reagan’s views already: “I think what those files show is a young White House staffer helping to provide legal analysis in support of the President’s agenda, President Reagan’s agenda.” In other words, Roberts supplied reasons for Reagan to believe what he believed anyway, but kept his more nuanced views for himself.
When, in the course of a long, varied, and successful career do lawyers become free to have their own agendas and say what they really think? Not when they leave the government and enter private practice. Roberts told the Senate Judiciary Committee that “the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer.” He also noted that he had once helped some welfare recipients to get their benefits restored. Presumably that was to make clear that he does not necessarily support welfare benefits.
What if that practicing lawyer should be appointed as a judge? Alito warned senators not to assume that the decisions of a lower federal court reflect a judge’s true beliefs, because lesser judges are bound by rulings of the Supreme Court. And if that lower court judge is nominated to join the Supremes? We all know that in the confirmation process, etiquette, if not ethics, requires evasion, if not outright lying, because to reveal any actual legal view would amount to “prejudging” possible future cases.
And finally, even Supreme Court justices are bound, to some extent, by the doctrine of stare decisis, which is the judicial equivalent of papal infallibility. Rulings lose the mystical authority they depend on when people start to get the idea they can be reversed at will. The actual power of stare decisis in restraining Supreme Court justices from saying and doing what they believe is unclear. The capstone untruth of a successful legal career is promising, under stare decisis, to suppress your true beliefs more than you really will.
How did we get to this situation where the princes of the law claim a lifetime of insincerity while their enemies accuse them of having told the truth all along? It’s partly the result of various confusions and evasions now baked into the confirmation process. Not expressing a view does not equal not having one. For a Supreme Court nominee to have thought about legal issues and reached some provisional conclusion is not a scandal. It is admirable and probably inevitable. For senators to learn these views and exercise “advice and consent” on that basis is not a scandal either. That’s how it is supposed to work.
There is a difference between a general political philosophy and a judicial philosophy—a view about the role of judges. Neither is a bad thing for judges to have. Neither amounts to “prejudging.” In fact, a judicial philosophy is essential. Judges should rule based on their judicial philosophy, not their political ideology. For that reason, trying to determine a judge’s judicial philosophy is a perfectly legitimate part of the Senate confirmation process. And that includes following that philosophy to specific conclusions on specific issues. You want judges to be open-minded, not empty-headed.
For a lawyer to advocate the client’s views, rather than his or her own, is also how it is supposed to work. And the obvious corollary is that lawyers often don’t believe what they say. But, as a member of the Bar, I wish Supreme Court nominees would stop pointing that out. It could wreck the whole system.