An edited version of this article appeared under the title "The Law" in The American Enterprise(Nov.-Dec.2001)

Restoring the Domain of Politics


by George Liebmann


The Bush administration must determine what its policy will be
with respect to the federal judiciary. Thus far, there is no
reason to suspect any departure from the approach of other recent
Republican administrations: personnel is policy. The principal
strategy for curbing excesses by judges and advocacy groups will
be strict control of the appointment process in an effort to
change the judiciary by appointing the politically reliable.

This approach has obvious limitations. Given the alternation of
the parties in office and the continued dependence of the present
Democratic party on identity politics and the advocacy groups
exploiting it, over time such a policy can be only half
successful. In addition, concentration on judicial appointments
rather than judicial structure and powers is a doomed approach
for other reasons. A closely divided Senate puts a premium on
finding 'stealth candidates' who almost by definition are persons
without particularly strong convictions. Confirmation
controversies are apt to be protracted, ugly and distracting,
consuming time and energy that would otherwise be devoted to the
administration's legislative program and personalizing and
polarizing politics. The end result is the seating on the bench
of persons with a number of things in common: they are narrowly
educated lawyers, members of the upper middle class, proteges of
the like-minded on courts and law faculties, and products of
bureaucratic firms and agencies. Today's lawyers are not the most
venturesome and entreprenurial folk; over the long term,
conformity to the fashionable zeitgeist is to be expected of
them. For this reason the British barrister and historian Peter
Calvocoressi, in opposing judicial review for his own country,
suggested 40 years ago that it can readily become a vehicle for
"making the law so much more inflexible as to deflect it from the
service of society to the service of a class."

Yet Republican discontent with judicial activism is fully
justified. The British law professor Martin Loughlin in his book
Sword and Scales has recently written of the growing tendency of
law to devour politics, to the detriment of both methods of
adjustment and decision. The dominance of legalism means the
dominance of uniformity and centralization, a rigidification of
politics and government, a loss to initiative and citizenship, a
polarization in opinion and alienation of the characteristic
losers in litigation, and ultimately the corruption accompanying
most concentrated power.

Past efforts to limit judicial excess have not been so naive
as to rely upon the appointment power. The nationalism of the
Marshall court was met by the anti-injunction act of 1793 and the
Eleventh Amendment, the bigotry of Southern state courts by
removal statutes and provisions for the appointment of federal
voting registrars, the business bias of the judiciary by the
Johnson Act protecting public utility commission rate orders, the
Tax Injunction Act and the 16th Amendment protecting state and
federal income taxation. Interference with the labor movement was
countered by the Clayton Act provision prohibiting 'John Doe'
injuctions, now part of the Federal Rules of Civil Procedure, the
Norris-La Guardia Act, and state workmen's compensation laws.
Large areas of controversy--broadcast regulation, social security
disability, zoning and nuisance regulation have been removed from
the courts and confided, in the first instance at least, to
administrative agencies. Federal habeas corpus has been curtailed
and the enforcement of state penalties such as capital punishment
thereby facilitated; the same is true of litigation by prisoners.
These devices, whatever the merits of the particular policies in
whose interest they have been deployed, have been far more
effective than new judicial appointments in curbing unwanted
judicial interference with public policies. Indeed, resort to
curbs on the judiciary is almost an index of the seriousness of
reform movements.

What excesses require correction? Most of them do not arise
in the context of ordinary criminal prosecutions, where the
judiciary's role in protecting defendants against factual error
or state persecution should be held inviolate. Nor do they arise
in the general run of private civil litigation between particular
litigants. Both these activities involve what Aristotle--and
Edward Levi after him--described as corrective or commutative
justice. It is rather in the realm of distribtive justice where
problems arise--in efforts to invalidate legislative compromises,
to redistribute large sums of money from class to class or group
to group, or to so arrange judicial processes as to
characteristically disadvantage particular groups or interests.

A number of current rules and practices are the subject of
justified disquiet and should be addressed directly rather than
only through judicial appointments:

The constitutional litigation process

Where advocacy groups like the ACLU attack the validity of
state statutes or local ordinances, a grave imbalance exists.
Advocacy groups can wage coordinated litigation campaigns in
multiple towns and states and can spend months on expert
preparation of their cases. Typically such cases are defended by
inexperienced and young county or school board attorneys or state
assistant attorneys general , who are given at most 30 to 60 days
to file their formal answers to long-prepared complaints. More
frequently, immediate temporary restraining orders or temporary
injunctions are sought and granted against unprepared government
officials, which nullify and discredit state and local laws and
delay their effectiveness for months and years. A typical example
was supplied by the abortion regulation legislation in
Pennsylvania sponsored by the administration of Gov. Robert Casey
and modelled after legislation already upheld by the Supreme
Court in the Webster case. Notwithstanding that the ultimate
outcome of the case was a foregone conclusion, a sympathetic
district judge was found to enjoin the statute, more than a year
passing until the injunction was disssolved by a panel led by the
late Judge Collins Seitz, one of the most distinguished of modern
federal judges. Since nearly a thousand federal district judges
throughout the country are equipped with the power of injunction
and many preside in single-member districts, judge-shopping is
easy. Even in 'random assignment' districts, emergency
applications can be presented on days when a judge of known
biases is chambers judge, Some judges, the late Judge Miles Lord
in the federal district court in Minnesota being a notorious
example, operate virtual injunction mills. Judicial eccentricity
is ineviable and tolerable when the cases of particular
individuals alone are at issue; a reversing judgment wipes the
slate clean. Major political effects result where such judges are
allowed to make decisions on questions of public policy of
national import. For this reason, most foreign systems restrict
judicial review of legislation either to a single constitutional
court, as in France and Germany, or to a handful of appellate
courts, as under the recent British legislation adopting the
European Convention on Human Rights. An analgous reform in the
American federal system would restrict the power to enjoin
legislation to the federal Courts of Appeal acting en banc, while
allowing the District Courts to try cases and issue fact
findings. Such action would not be unprecedented. Congress, in
statutes like the Civil Rights Act of 1965 and the Welfare Reform
Act of 1996 has frequently channelled constitutional litigation
to particular federal courts., and prior to the Mandamus and
Venue Act of 1962 most litigation attacking federal statutes and
regulations was required to be brought in the District of
Columbia.

In addition, the requirement of Rule 52 of the Federal Rules
of Civil Procedure that decisions of federal district courts be
accompanied by findings of fact and conclusions of law is
frequently honored in the breach in constitutional litigation,
rendering appellate review imprecise and difficult. The El Paso
case in the Supreme Court strictly enforced this standard in
antitrust cases; no statute is necessary for the courts to be
required to do the same in cases attacking statutes, ordinances,
and regulations. Plainly also the availability of preliminary
relief should be severely limited, as it has been in labor
injunction cases. States and localities should be given at least
120 days to respond to constitutional complaints and there should
be a central repository of constitutional complaints and possibly
required publication of short summaries in the Federal Register
to permit adversely affected governments and groups to respond to
litigation campaigns. Justice Ruth Ginsburg, herself a former
ACLU attorney, has recently lauded the contribution made by three
conservative legal foundations in improving the litigation
process in constitutional cases by providing competent defenses
otherwise absent.

Fees and fee shifting

The Civil Rights Attorneys' Fees Act which requires
jurisdictions successfully sued to pay the counsel fees of even
partially successful plaintiuffs while providing for no reverse
fee shifting against unsuccessful plaintiffs has become a major
weapon in the hands of advocacy groups., particularly when claims
are asserted against small and financially weak municipalities
and school districts. The threat of such fees is used to
terrorize public entities into settling cases or abandoning
appeals. As I write, the Annapolis city council is being urged
not to appeal invalidation of a drug-loitering ordinance, the
ACLU asserting that its lawyers are entitled to $200,000 in fees
for work in the trial court and will be entitled to more for work
on appeal. By heavily publicizing such an unappealed fee award
against a small school district in New Jersey, the ACLU has
deterred most of the nation's 15,000 school districts from
experimenting with careful programs of random drug-testing of
students, notwithstanding the success of such programs in the
military and in private industry. The availability of fee awards
to students contesting school discipline under the Individuals
With Disabilities Education Act has done much to break down
student discipline in public schools and has resulted in multiple
fee awards of staggering size against the hard-pressed schools of
the District of Columbia. Plainly, unless a presumption of
unconstitutionality of all government action is to be the rule,
this provision requires elimination. Public causes of genuine
merit can be advanced by advocacy groups using and raising their
own funds, as with the labor and civil rights movements, not by
constituting them as parasites upon government error. If fee
shifting is to be permitted at all, it should be two-way shifting
and the courts should scrutinize fee claims much more intensively
than they now do; celebrated instances of abuse include the
multi-million dollar claims in the women's rights cases against
VMI and The Citadel and those claimed by Prof. Laurence Tribe in
a rather simple case against a Massachusetts liquor board. Fee
shifting should be confined to cases of intentional wrongdoing,
as distinct from those involving debateable and undecided issues.

Lawyers for the poor

The effort in the 1996 welfare reform act to rein in the
federal legal services program has fallen victim in the Supreme
Court to the appealing proposition that lawyers, once hired,
shold not be prevented from making available arguments. One may
still question the decision to attempt to foster what Geoffrey
Hazard once satirically described as "social justice through
civil justice" by creating a federal program staffed by young,
politically engaged lawyers, an American Narodniki. Bureaucratic
abuse of the poor can fruitfully be addressed through less
adversary methods. When the legal services program originated
during the Johnson administration, a different and more hopeful
model for assistance to the poor in navigating society was
rejected. A study prepared by Prof. Alfred Kahn of the Columbia
School of Social Work suggested the creation in the United States
of a network of Citizens' Advice Bureaux on the British model.
These are manned by adults, not overgrown children, of
politically diverse rather than uniform persuasions, who are
knowledgeable in varied disciplines, not only the law, and who
are civic volunteers, not ill-paid professionals. Their objective
is to interpret social legislation, place individuals in contact
with social agencies, relatives and others who might be of help
to them, and in general to reintegrate the poor into society
rather than to assist them in litigating against it. They perform
social work as it was originally conceived by Octavia Hill,
Josephine Lowell, Mary Richmond and others before its capture
first by psychoanalysis and then by marxianism.

A second road not taken was that proposed by Judge Henry
Friendly in a speech entitled "Some Sort of Hearing" published in
the University of Pennsylvania Law Review in 1965: the ombudsman.
Most bureaucratic mistreatment of poor people results from
maladministration: errors that would be corrected if the public
and responsible officials knew of them. These mechanisms,
familiar in Scandinavia and on the Continent and to some extent
in Britain hasve been scarcely explored in the United States,
notwithstanding the efforts of Judge Friendly, the late Walter
Gellhorn (editor of Ombudsmen and Others), and Prof. Kenneth Culp
Davis, the leading American writer on administrative law. The
Bush administration will be justified in pruning legal services
if it fosters these alternatives.

Monetary class actions

The mushrooming growth of monetary class actions and the
billions in attorneys' fees associated with them also requires
attention. These were the product of a little-noted amendment to
Rule 23 of the Federal Rules of Civil Procedure in 1966 and new
mostly judge-made doctrines relating to products liability These
have given rise to huge attorneys' fees, many recycled into
political contributions to defenders of the tort system. The
impulse for thse developments commes from the lack of
administrative systems of adjudication like those provided by the
workmen's compensation laws and lack of public disability
compensation, common in Western Europe and in more rudimentary
form in the legislation of 3 or 4 states, including New York.
Such additions to the welfare state are expensive, but no more so
than the burgeoning costs of the tort system. They have the
advantage that most of the benefits go to claimants rather than
lawyers and 'expert' witnesses. Yet when the American Law
Institute undertook to study these options in the late 1980s, its
initiative was stifled by opposition from the trial bar. A
responsible Justice Department must venture where a private
organization did not.

Structural decrees

Finally, a good look should be taken at various forms of
structural relief granted by the fderal courts in civil rights
cases. Such injunctions had their genesis in the 'massive
resistance' to desegregation of Southern schools. Aided by an
influential treatise by Prof. Owen Fiss of Yale, use of the
federal injunction has burgeoned, and 'special masters', almost
invariably people with political commitments, have been appointed
to manage or supervise schools, jails, mental institutions and
even, under a singularly dangerous and ill-advised recent piece
of legislation, police forces.
These decrees are frequently entereed by consent, where county
attorneys or state attorneys general are politically sympathetic
to the plaintiffs, or with a degree of opposition that would do
credit to the Chicago Black Sox. Measures of this sort affecting
public agencies were unknown until a district court case
involving the Pennsylania Association for Retarded Children in
1972; they since have burgeoned. Plainly state and local
officials should not be permitted to thus bind their elected
successors and the doctrines of finality appropriate to consent
decrees against private persons and entities are not appropriate
when entered against officials who the public is supposed to have
the right to replace at elections. Yet there has thus far been
too little questioning and limitation of these new developments,
which further devalue local democracy. In this writer's Maryland,
the ACLU obtained a federal consent decree requiring
controversial dispersion of public housing which provides that
certain housing vouchers cannot be used in neighborhoods more
than 29% black, a provision against which Baltimore's current
mayor periodically fulminates. In addition, the same organization
obtained a nominally litigated state court decree purporting toi
require hundreds of millions in new school spending, the decree
being entered by consent, with one sentence of findings, in a
case in which adversely affected jurisdictions were denied leave
to intervene. The public may submit to such abuses in prosperous
times; in more turbulent ones they endanger democracy, public
order and the rule of law.

The new administration cannot behave as though legal reform
begins and ends in its personnel office. It must devise and
promote more legitimate ways to address grievances, of which
advice bureaux, ombudsmen, and administrative compensation
schemes provide three examples. The new administration must also
sponsor statutes curtailing federal criminal jurisdiction, which
was allowed to explode during the Clinton administration, and
should also act to curb civil discovery abuse, so profitable to
the private bar. There must be vigorous and systematic
questioning of judicial authority to enforce consent decrees and
structural injunctions binding future officials.

What above all else is required is the restoration of a more
appropriate division of labor between law and politics. This
requires a return to normal politics, a recognition that politics
is an instrument of compromise and not a device for acquiring
absolute power; an end to the 24-hour war room and the perpetual
campaign. Without a climate of reasonableness, political
grievances cannot be effectively redressed, and the courts on
which we rely for fair trials and corrective justice will be
increasingly perceived as partisan or corrupt.
---

George Liebmann, a Baltimore lawyer, is a TAE contributing
writer. His latest book is Six Lost Leaders: Prophets of Civil
Society(Lexington Books,2001).