Closing arguments

BY ALLISON WHITE

I COULD NOT HAVE ATTENDED law school at a more crucial time. In the three years that I’ve studied here, the critical issues of our generation have emerged – some in catastrophic clarity, some in unsettling stealth.

Of course, upon hearing such things the minds of my classmates turn to the morning of September 11, 2001, which exploded into our consciousness mere weeks into our legal education. Told only years earlier that we had reached The End of History, we were stirred awake at The Dawn of History.

But September 11 was not the only world-bending event of the last three years. In our time here those issues surrounding and underlying the law we’ve studied have crept along, like plates on a fault line, changing the landscape so slowly sometimes that it was hard to realize anything was happening until we reached the end of our task and finally stopped to look around.

We’ve watched the Supreme Court, once nominally a “conservative” court, cast its lot unquestionably on the side of judicial activism. The Court has comprehended, unflinchingly, the brute force of “substantive due process,” and it wields it eagerly. It cites international “precedent” as a matter of course. In mere months it may purport to rewrite centuries-old notions of sovereignty, and also assert unprecedented control over the President in the waging of war.

In our own backyard, the Supreme Judicial Court declared millennia of marriage law unconstitutional. And this week the Superior Court took over the Commonwealth’s school system.

Senate Democrats have declared all-out war on judicial nominations, filibustering nominations that enjoy majority support in the Senate. According to their own strategy memos, they singled out one nominee for filibuster because “he is Latino.” They delayed a Sixth Circuit nominee in order to keep safely liberal the court in charge of the Affirmative Action cases. They blocked a Catholic state attorney general because he had “deeply-held” religious beliefs, despite his record on protecting abortion rights and prosecuting a rogue

“Ten Commandments” judge.

And we were witness to the moment when the presumptions and the post-World War II legal order were exposed and challenged. A coalition of unilateralists – the U.S., U.K., and the rest of our allies – attempted to enforce the U.N. Security Council’s own resolutions, while another coalition of unilateralists – France, Germany, and Russia – sat on their oil-sullied hands.

Dean Acheson and The Wise Men were present for the creation. Our generation was present for the cremation.

The issues I’ve listed will, I believe, form the core of the legal disputes of our generation. Each precedes our entry to HLS, but each was blown wide open in our time here. I list the developments not because I am pessimistic. Quite the contrary. I list them because I am optimistic. I’ve met many of the dedicated young people, here and elsewhere, who are eager to confront these realities honestly and take action to stem the tide.

Any regular readers of this column know that I am most interested in the last two issues – judicial nominations and cosmopolitan internationalism. I won’t write further on nominations – at least not in this forum. But I would like to take my privilege, as a graduating columnist, and deliver a parting thought on internationalism:

This month, in Foreign Affairs, Sandy Berger – formerly Clinton’s National Security Adviser, currently John Kerry’s adviser, and forever an HLS alumnus – outlined “Foreign Policy for a Democratic President.” Largely echoing his remarks before an HLS audience last year, Berger warned that America has “embittered” the international community by our “high-handed style,” our “gratuitous unilateralism.”

But Berger’s prescriptions ignored the core question: what happens when other nations refuse to listen in good faith to our arguments? When nations, in their own economic or political interest, abuse the tools of international order? When other nations are unilateralist?

Berger has no answer; he won’t even indulge the thought for a moment. Neither, I worry, do too many among us.

Too many eager internationalists – students and faculty, American and foreign – persist in pretending that the international community is merely waiting for us to repent. The Chiracs, the Schroeders, the Mahathirs, the Arafats, all of them are ready to work with us in the interests of some ultimate good. And Madeleine Albright, Sandy Berger, Anne-Marie Slaughter and Martha Nussbaum are going to get us there, just as soon as we finish listening to Kofi Annan’s commencement address.

I marvel at the power of law and democracy as a force of good in the world, but I recognize that the power is limited, and has proven farcical in the context of European-style legalism. Law is like currency: as we inflate it, we limit its value. It’s time to cut the UN back to the basics of humanitarianism, while relyng more on ad hoc coalitions to achieve our security goals.

In my first year, Alan Dershowitz recited to my class an old saying: “May you live in interesting times.” The Chinese considered those words a curse; Dershowitz, a blessing. Isuspect that it is neither, so much as it is a challenge. I look forward to it, especially when Isee who’s on my side of these fights.

In three years, I’ve met many with whom I look forward to defending of the rule of law. I’ve met many from the other side, too.

I hope their NGOs all go bankrupt.

I thank all of the friends, faculty and staff who have made my three years here so enjoyable. God bless.

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