Politics by other means


Students seek admission to Harvard Law School for a variety of reasons — among them, the opportunity to share in the intellectual heritage of those who came before us. From Holmes and Hand to Scalia and Dinh, it’s the chance to share that aura that encourages us to shell out the big bucks.

In that spirit, however, Sen. Charles Schumer ’74 owes us all a rebate.

I’m not foolhardy enough to pretend that our judiciary is untainted by politicking — judges endure Senate scrutiny by Constitutional design. Likewise, I’m not one to draw a bright line between the substance of law and politics — my legal realist tendencies were present before I enrolled in this (Duncan) Kennedy School of Government.

But as a realist, I consider myself sufficiently attuned to reality to see through the charade of a Senator who’s spent months keeping Bush nominee Miguel Estrada ’86 away from a seat on the D.C. Circuit for reasons having nothing to do with legal excellence.

Schumer promised better. When the President lessened the role of the A.B.A. in vetting nominations, Schumer cried foul: The A.B.A. evaluation is “the gold standard by which judicial candidates are judged,” he wrote. Yet he attempted to squash in committee a nominee who received the highest rating of the A.B.A. Who says the value of gold has increased this year?

Schumer called the White House change “a signal that, instead of quality, they are looking for ideology.” But in last week’s Senate debate, Schumer cited his three criteria for judges: legal excellence, diversity and political moderation. In the same breath, he credited Estrada for fulfilling the first two standards; his sole grievance was alleged Estrada rightism. He labeled Estrada a threat who would “approve the administration’s environmental rollbacks,” a friend of “Big Business” and generally unfriendly to DNC policy preferences.

He criticized Estrada for refusing to answer questions in a September committee hearing. While Estrada refused to take the bait in a room filled with more litmus than a chemistry set, he vigorously answered the most important question:

Sen. Grassley: “What would you do if you believed the Supreme Court … had seriously erred in rendering a decision? Would you nevertheless apply that decision….?”

Estrada: “My duty as a judge and my inclination as a person and as a lawyer of integrity would be to follow the orders of the higher court.”

Thus, an exemplar of (according to his arch-nemesis) “legal excellence” and “diversity” pledging to obey stare decisis remained hostage to a Senator who publicly warned of the dangers of “ideology.”

On January 22, as women handed out cake in the Hark for Roe v. Wade’s “birthday” (What irony: a “birthday” for abortion), I told a button-bearing Roe-bot, “Roe is a poor opinion; it was wrongly decided.” She hit the roof. I clarified that I was referring to Roe’s legal integrity, not its politics. Another woman — completely missing my point — asked “What’s wrong with a woman controlling her body?”

I don’t necessarily reject her opinions on abortion. I don’t reject the thought that a “right to abortion” could possibly be retained by the people. I do reject the notion that Roe is worthy of Justice Blackmun (for fifty states of Congressman Blackmuns, however, it would have been a legislative groundbreaker). One can be pro-choice and anti-Roe — but to too many law students, the suggestion that Roe is wrongly decided and that abortion should have remained a state question is a notion they rush to abort before it achieves viability.

To recoil in horror at the suggestion that Roe was a less-than-sound piece of judicial reasoning is to publicly embrace as judicial philosophy “nonsense on stilts” simply because the stilts in question rise up to the height of one’s political platform. It is to commit the folly of Chuck Schumer: to believe that the protection of one’s own political ideals is the true mark of judicial excellence, to cast aside judges — like Estrada — pledged to “legal excellence” and stare decisis, out of fear that such a judge might point out that enacted law isn’t really in our favor.

If we embrace Schumer’s concept, then we abandon the idea that federal judges should be arbiters of the law as passed by Congress in the shadow of the ballot box. Judges then become but legislators with better market power… true to oligopoly, the product — justice — will be underproduced and offered to consumers at too high a cost.

A man once posited, “War is not an independent phenomenon, but the continuation of politics by different means.” Had the author, like Schumer, spent time at HLS, his maxim would have differed slightly: Here in the Halls of Holmes, law is the continuation of politics by other means.

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