Tuesday, February 14, 2017

Ruminations 71: Thoughts on Martha Minow and Robert Post, "Standing Up for 'So-Called' Law"

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A large section of the American intellectual elite has been wary of the election of the 45th President, and more worries still from the evidence of the trajectory of his presidency from his actions after January 20, 2017.  To a great extent this wariness and its public expression is to be lauded--it is the great hallmark of this Republic that its elites can both fracture and aggressively push forward their opposition to the actions of the Republic's political leaders (e.g., here).

The habit of the 45th President to tweet his thoughts, and to opine on current events touching on his presidency, has also raised hackles--especially among those most offended by their contents (e.g., here, here, here and here). That also is fair--as politics.  On the other hand, there may be a sense that the critique a bit fussy and old fashioned suspicion that novel uses of new technologies in politics  can only lead to bad things, especially when used in the way pioneered by the 45th President. 

Critiques, however, have started to take the 45th President's tweeting more seriously.  On January 27, 2017 the 45th President  issued the Executive Order: Protecting the Nation From Foreign Terrorist Entry into the United States. That Executive order causes confusion at airports, strong counter reactions among people who called it a "Muslim Ban" (here, here, and here), and lawsuits. An initial effort to block the Executive Order from a New York federal district court was ignored (here). Thereafter a federal district court judge issued a nationwide injunction (here, and here) that produced a set of tweets from the President (set out above) that itself provoked additional reaction (here, here, here and here).  
"I know there's a fear among the judiciary with what's being said," said John Muffler, a former U.S. marshal who teaches security at the Reno, Nevada-based National Judicial College. He cited professional contacts and email exchanges with judges.The president's critical comments have consequences, he added, because "people on the edge can easily be pushed over the edge once the rhetoric gets going." (Trump Attacks on Judiciary Raise Safety Concerns for Judges Fortune 11 Feb 2017)
Thereafter the injunction was affirmed by the 9th Circuit (here).  As of this writing it is not clear how the administration will respond.

The deans of the law schools at Harvard and Yale, Martha Minow and Robert Post, also saw in these tweets an opportunity to add their voices to the political discussion.  Their decision to lend their quite self consciously influential voices (at least within their peer groups and in their industry) merits reflection both for its thoughtful content and for the character of the intervention--quite consciously public. The opinion essay, Standing up for ‘so-called’ law, is reproduced below along with some brief comments about the opinion essay--focusing on it as rhetoric and politics.

In many ways Standing up for ‘so-called’ law, by Martha Minow and Robert Post, respectively deans of the law schools at Harvard and Yale, provides us with a very fine example of elite American academic advocacy of its generation.  It merits study for its structure and the economy of its text. But it is an advocacy document, a political tract, with quite specific objectives.  It signals the willingness of a political class to engage in potentially rough politics. And it suggests a willingness to raise the stakes--early in the 45th Presidency.  But its real audience are the members of the class that the authors represent so ably.  This is not directed to the 45th President so much as it is directed at him--it is a well constructed verbal missile signalling both the views and protective intentions of the institution of the judiciary and its key constituents in the coming political debates.  That, certainly, is how this beautifully crafted opinion essay will be read. And yet, for a wider audience, perhaps it both reaches too far with its tight conflations, and not far enough with its etiquette based defense of the institution of the judiciary against the tyranny of loutishness under the ever present shadow of the 1930s. For that wider audience, the essay reads as a declaration of intention, and perhaps more importantly, as a reaffirmation in this anti-egalitarian age, of the tight connection between the status of writer (whether of essay or tweet) and the power of an idea.

The essay starts with the text of the initial Presidential tweet and the criticism that the tweet serves as evidence of the extent to which the 45th President is not acting "Presidential," at least as that term is implicitly understood by its authors and the class of which they are important members. But the criticism was not merely one of Presidential demeanor--that the 45th President is behaving badly in the bourgeois sense of that notion--but that this bad behavior will produce consequences detrimental to the interests of the Republic, in general, and more specifically to that portion of the Republic's affairs with respect to which both of the authors implicitly claim positions of influence. 

What appeared to offend most--or to be most useful as evidence that all members of their class might also find objectionable--was the 45th President's presumption of offering low-brow opinions of the merits of the legal arguments put forward in defense of the lower court injunction. Those boorish comments, it is implied, inject the President precisely where he does not belong--in the business of having an opinion about the law and of offering it up to whoever has a taste for his views. Decorum, decorum and politesse (the essence of separation of powers) militates against the gaucherie that, it is suggested in a marvelously subtle way, are the tweets (but see in a less boorish way here). Together, these statements and reflections would make an enemy of "the law" and of "the Constitution." The remainder of the essay seeks to explain why this must be so.  

The extent of the 45th President's gaucheries, of his inability to behave as he ought, to conduct his politics in the style to which the authors believe he must be bound, is merely the outward manifestation of more dangerous political delicts. The first touches on the 45th President's coarse bullying.  What makes the bullying unacceptable is not its function, but its form--it is not encased in the style of the sophisticated use of a "bully pulpit" which members of the political class that include the authors (contrast here, here, and here). Rather the 45th President seeks to revive the horrors of a Manichean world order that has caused nothing but trouble whenever, over the ages, it has been deployed. And he seeks to accomplish this by breaking with the standard practice of relations with the news media--itself now grown and changed within global corporate ownership chains. It is true enough that, from the perspective of this Republic's political manners through 2016, such loutish conduct would have been despised.  Yet bullying might be despised as a form of critique even as its function might still fall within the scope of presidential prerogative.  It's consequences--something that the authors appeared at pains to avoid--however, might have been centered more effectively.  The problem, then, might not be the unrefined behavior expressed in the tweet, but of the failure to marshal effective political consequences against it. In the absence of that connection, the argument reduces itself to a stylized comedy of manners.    

To deepen the effect of the charge, the authors seek to paint the 45th President with the brush of  the Nazi thinker Carl Scmitt.  Putting aside the fact that the 45th President might never have encountered these writing, nor be able to understand Schmitt for the object the authors suggest (though he might well have both read and understood Scmitt to great effect), the object is to use Scmitt as the Nazi bogeyman to produce the undertone of the more than whisper campaign reflecting a conviction of the 45th's Presidents personal political flaws--his misogyny, racism, anti-antisemitism etc. that has been around since the campaign heated up in 2016. This is marvelous political writing to be sure. What makes the conflation terribly ironic, though, is that the object used to scorn the 45th President has been used consistently and effectively by members of the political class to which the authors belong, and for the furtherance of their own political and societal visions (e.g., here).  Schmitt, then, is hardly the most effective tar with which to feather the President.  It might have been far more effective to avoid the Nazi analogies entirely and focus on the inherent Leninism in many of the tactics--something that might have been more effectively deployed.  But the American academy has lost its taste for Lenin, even as Leninism's premises and principles have found their way into our practices--from business and social control. But that would have called for a reflection whose image might not have been as starkly drawn.  A pity. 

The charge acquires more specificity when the authors focus on the bad intentions masked by the Executive Order itself, and bound up on its targeting of Muslim majority states. Here the essay is at its most effective and most judgemental--offering up a set of conclusions grounded in the author's own sense of the fundamental nature of the Republic and the interpolation of that sense to the fine points of the Executive Order--precisely what the 45th President did in his own crude way, but in this case wrapped within the authority of the position (and expertise) of its authors. That counts for much within the world they inhabit--surely a quite powerful world indeed.  Yet they also are neither judge nor elected official.  Even for those sympathetic with the core of their judgement, and that includes this writer, the conclusion statements--powerful in their staccato cadence, offers little other than the amplifying effect of their words to underline their position within the American academic community.  And the irony of invoking religion in defense of political values--the reference to "sacred American traditions," could not have been lost on some. Yet as rhetoric it is the most effective part of the essay, though also the most troubling beyond the narrow confines of the object for which it was written.  And it was not necessary to make the most relevant point--that the evidence suggested that the principle objective of the Executive Order was political and that its political objectives were manifested in the process by which it was crafted. This is the powerful point most useful for judging the Executive Order as politics--but not its legitimacy as law. 

And that law-politics conflation ills serves as a basis of legal analysis, unless this Republic has indeed adopted the European Leninist notion of the conflation of politics and law.  That would indeed be most regrettable. Yet it is also evident in the refocus of the discussion from bullying to oafishness, to conflations with un-American political philosophies, to the political use of religion and foreigners, and ultimately to a conflation of the 45th Presidency (in its methods) with those of its terrorist enemies ("Trump’s executive order feeds the “clash of civilizations” narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country"). And, of course, this is followed by the now almost obligatory references to antisemitism--the political use of which reduces antisemitism to bathos; unintentional but also quite troubling in its own way. 

It is at this point that the authors seek to more pointedly leverage their status (a nod, perhaps, to those (sympathetic) outsiders who might be reading) to enhance the authority of their argument. To that end they offer us their positions within the American academy and their long years of service producing an outstanding pedigree by any measure. And indeed, this paragraph ought to have its intended effect.  These are individuals worth hearing out.  And they do the nation a service by evidencing both the forms by which political discourse ought to be engaged as well as its contribution to the substance of those debates. At the same time that indulgence in status play provides the authors with a subtle ad hominem weapon of their own--unstated but quite apparent is the contrast between the status and qualifications of the authors and that of the 45th President.  Status is offered as much to belittle the 45th Present as it is meant to enhance the authority of their argument.  A very nice rhetorical turn, and one subtle enough to be denied if necessary. Still, in the end, one wonders whether an argument ought to be weighed by its own inherent value rather than tilted to favor those with the greatest status within our society. That would certainly add weight to egalitarian values that assesses the value of an idea by its inherent worth rather than through the status of its author. But though academics continue to say this, when they think it useful, their actions and the structures of their own peer groups suggest the opposite to be closer to the truth (e.g., here).  The need for this paragraph, then, suggests as much the advanced state of class based politics in this nation, as it adds weight to the arguments put forward. The rhetoric of status itself ought to trouble; one ought to worry that who says something becomes as important as what is said.  The worry comes not merely from the  implied presumption that only high status lawyers and academics can understand the mysteries of the law and its application--an argument as old as the disputation between James I and Edward Coke (e.g., here)

On the other hand, in the marketplace for ideas, one that is now quite crowded through the magic of the Internet, these market distinctions may come to play a larger role than the engagement with the ideas they put forward.  That commentary on political methodologies and valuation ought to trigger substantially more discussion. Status, perhaps, has become the great shill of ideas in an Internet age. That perhaps is the greatest insight of the essay--the embrace of the notion that individual, shorn of office, counts for nothing.  Indeed, the very object of this essay--to rebuke a president for oafish remarks and to better educate him in the etiquette of his office (as the authors reprieve it to be sure)--suggests that the power of the tweet at the heart of the essay does not come form their ideas, or the extent of their offense, but from the status of the writer.  It is status that gives power to ideas.  And that, perhaps is the most ,lamentable truth to be extracted from this essay.  

And thus well prepared, the last two paragraphs of the essay return us to its principal object--the defense of law and the constitution through a defense against boorish criticism of a judge by a President of the United States. The language here is dramatic and perhaps operatic, in a 20th century American opera kind of way. The authors speak to "radically disturbing" nature of an attack by the Republican President on one of his own (that is on a nominee of a previous Republican Party President).  This produces the essential conflations on which the essay is built: between the person of the judge and the personality of the law (and its Constitutional basis); between the institution of the judiciary and the basis of the Republic itself.  And it is not for nothing.  The object is to suggest that the criticism, in the way it was made, was not merely bad manners (as polite society would have it) but also an actionable offense perhaps worthy of adding to that list that will necessarily form the articles of impeachment of the 45th President. In this nation of judges, only the institution of the judiciary can civilize the otherwise dangerous political passions of its citizenry. To criticize the judge is to denigrate the judiciary; to impugn the judiciary is to reject law as a basis for orderly society, and to reject law as a basis of orderly society returns us (a neat subtle reference back to the Carl Schmitt analogy) to the lunacy that produced the totalitarian states of the left and right in the 1930s. Here, at last, the rhetorical climax of the argument so carefully crafted in the paragraphs leading us inevitably from a mockery of a judge with whose decision infuriated the 45th President (wrongly to be sure under our old political etiquette) to a fundamental threat to the Republic.

Having brought us to these heights of fear and loathing, the authors offer us safe harbor in the last paragraph, a paragraph constructed like the Epilogue of Don Giovanni after the passionate climax of the scene in which the Don is dragged to Hell. We are reminded that the Republic is fragile (and so it is).  But the community of judges, the institution of the judiciary, retains both authority and legitimacy.  It must be called up on to defend itself--and thus the Republic--from attacks that might, even in the smallest sense, question its legitimacy or the honor of its individual judges (unless of course they are impeached themselves, a practice that is also as old as the Republic). To that end, the protection of the judiciary becomes the protection of the rule of law becomes the protection of the Republic itself. Etiquette, in the end, becomes the very basis for the foundation of the Republic and the means through which the honor of its branches is maintained.

Where does that leave us? The conflation of judge and judiciary hides as much as it reveals. For an elite that has delighted in repudiating the racism and misogyny of individual judges of an earlier age while holding intact their respect for the institution of the judiciary, it ought to be more difficult to build an argument grounded in a conflation of judge and judiciary to support the simple presumption that ad hominem attacks on a judge are grave attacks on law and our constitution.  This is neither the first nor the last judge that will be criticized for the soundness of an opinion, nor is it the first nor last time that a judge will be subject to ad hominem attack (e.g., here and here). To choose this issue at this time suggests the political nature of the defense of this judge in the name of the institution of the judiciary and the integrity of law.  There is nothing wrong with that--and the authors should be lauded for taking a principled and protective stance toward the protection of their view of both. The essay works best as an example of political advocacy.  And to that end should be well appreciated.  But its reach exceeds its grasp--but not for its target audience, for which the essay provides an elegant defense of a cultural stance of this socio-economic and political class. And that is the great pity of this jewel of its type.


Standing up for ‘so-called’ law
The Boston Globe
By Martha Minow and Robert Post February 10, 2017

Last Saturday, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In mocking Judge James L. Robart, the federal district court judge who stayed the president’s executive order banning travel for individuals from seven predominantly Muslim countries, Trump risks making an enemy of the law and the Constitution. He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this” — before the appellate panel unanimously left Robart’s order in place.

Now Trump is attacking anyone who calls him to account — senators, scientists, the civil service, the media, and the Democratic Party, to name a few. His approach divides the world between friends and enemies, vividly reminding us of the political philosophy of notorious theorist Carl Schmitt. Politics, Schmitt said, was an existential struggle for survival that requires us to destroy those who oppose us. It is no surprise, therefore, that Trump tells us that he is in a “running war” with the media, and that Trump’s trusted adviser, Stephen Bannon, instructs the press to “keep its mouth shut and just listen for while.”

Muslims are the latest enemy on Trump’s hit list. His recent executive order was plainly drafted to appeal to his supporters during the campaign. Because such a shocking proposal would violate sacred American traditions protecting religious freedom and nondiscrimination, he crafted the executive order in the close confines of the White House and refused to permit the relevant federal agencies with legal expertise — Homeland Security, Defense, State, Justice — to vet the order. The evident goal was to maximize the political impact of the order while minimizing the reasonable restraints that a respect for law might impose.

Trump’s executive order feeds the “clash of civilizations” narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country. It turns the United States from a shining beacon into a scene of religious and ethnic discrimination. It is no accident that anti-Semitism and reports of hate crimes are on the rise.

We are deans of respected law schools. We have dedicated our professional lives to the proposition that law overrides violence with reason. Law stands for what we have in common, not merely what divides us. Law respects disagreement; it patiently considers evidence and advocacy; it engages with the views of all. Each person — not just each citizen — is equal before the law. Created in ancient times to terminate endless cycles of vengeance and retribution, law substitutes official, publicly justified sanctions for animosity and enmity.

This is what is so radically disturbing about Trump’s attack on Judge James L. Robart, the George W. Bush appointee who temporarily suspended the enforcement of the executive order. If Trump believes he can make an enemy of the law and of the Constitution, then he has truly become a foe of the Republic, despite the oath he swore at his inauguration. The craft and professional culture of law is what makes politics possible; it is what keeps politics from spiraling into endless violence. By questioning the legitimacy and authority of judges, Trump seems perilously close to characterizing the law as simply one more enemy to be smashed into submission. At risk are the legal practices and protections that guard our freedom and our safety from the mob violence that destroyed democracies in the 1930s.

It is time for all who care about this nation to worry when the nation’s most powerful office is used to intimidate the institutions of law that have maintained American stability and prosperity since the founding of the Republic. Trump’s attack on the “so-called” Judge Robart and his “ridiculous” order exposes just how fragile our democracy is. The President’s own nominee for the Supreme Court, Judge Neil Gorsuch, has called Trump’s attacks on courts “disheartening” and “demoralizing.” We must be vigilant to preserve what makes America precious: the thirst for freedom and fairness, the demands of responsibility and cooperation, the solidarity that somehow makes e pluribus unum. Law is an essential medium of these virtues. If we are to keep the rule of law, it must not be a partisan question; it must not be the concern simply of lawyers. We must all defend it, passionately and whole-heartedly. Without the rule of law, we may have a “so-called” president who has in fact become a tyrant. Fundamentally, this moment is not about Trump. It is about all of us.
Martha Minow is the dean and professor of law at Harvard Law School. Robert Post is the dean and professor of law at Yale Law School.

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