Orwell once referred to defenses of Soviet tactics as presenting a theory of "catastrophic gradualism." In response to criticism of Stalinist brutality, a defender would say "you can't make an omelet without breaking some eggs." In response to the criticism that no omelet had appeared, the defender would say "you can't expect everything to happen at once."
Orwell's contrarianism is well known; he was much harder on his political friends than his enemies, and was long celebrated by conservatives whose political philosophy he rejected. Consensus seemed to worry him, and he styled much of his writing as a needle aimed at the balloons of a parade marching in his general direction.
Or perhaps that is just rationalizing projection on my part.
In any event I thought of catastrophic gradualism while thinking about the OLC memoranda and some correspondence I have had about them. The phrase that came to my mind as characterizing an important strand of the critique was "outrageous mundanity." By that I mean the idea that the memoranda were outrageously indefensible as--a duty of care violation. (There are of course some charges of subjective bad faith floating around, but as yet I have not seen good evidence to support that inference.)
Taken seriously, this critique raises a simple factual point (not the subject of empirical investigation yet, so far as I know) about what the average lawyer in such a case does. Insofar as the duty of care is concerned, if it could be shown that most lawyers in fact do the sorts of things reflected in the memoranda then there would be nothing wrong with them. (Actually, it is worse than that--technically the burden goes the other way, so a failure to show that the average lawyer would do something else justifies the memoranda, on this account.)
I disagree with this implication and, therefore, with the outrageous mundanity thesis. Even if it could be shown that 4 of 5 lawyers would have written the memoranda the same way they were written, there is still an important reason to criticize them and to draw from them some useful lessons about legal interpretation. It is not a lesson that implies discipline or, much less, prosecution, but I think it is a useful lesson nonetheless.
In general, the memoranda are apples dropped from the tree of high textualism. Calling the apples bad misses the point. What is needed is an axe.
I want to call the tree "modern legal conservatism." (Thesis below the fold.)
During my lifetime conservative legal thought has been most concerned with the image of judges "legislating from the bench." The concern overlapped with a general concern for the erosion of social order (recall gubenatorial candidate Ronald Reagan's reference to "the mess at Berkeley"), and attacks on "activist judges" played well with voters. Recall the "impeach Earl Warren" signs Justice Thomas referenced when he was nominated.
Part but by no means all of this concern was a reaction to the civil rights movement; part of it was a genuine concern that the rule of law was in decline along with general standards of responsible conduct. One need only read the elephantine, footnote-laden DC Circuit opinions of the 1970s to conclude that some judges aspired to be legislators in the mode of law professors, which should frighten any sane person.
Conservative lawyers of that era sought to "restore the rule of law under our written Constitution." President Reagan provided the high-level rhetoric and Attorney General Meese was a field commander whose skill at his task, I think, has not been fully appreciated. The emphasis on the written Constitution (I have heard it said that President Reagan always insisted on the "written") implied that what was not in the writing was not part of the law. For judges to consider things not in the text was, on this account, fundamentally un-democratic and, in a sense some might find hard to understand, totally lawless.
Conservative legal rhetoric implied that the rule of law had been corrupted by concerns for consequences (the only thing originalism, for the most part, rules out of bounds in deciding a case) and political expediency. "Corrupt" is the right word and here has unmistakable religious and even strangely sexual overtones, summoning up images of the fall from grace: It was, after all, Robert Bork who wrote "The Tempting of America: The Political Seduction of the Law" (followed, of course, by "Slouching to Gomorrah.")
Legal conservatism's notion of restoring the rule of law placed a very high premium on text; many of its proponents almost reveled in the refusal to worry about the consequences of an interpretation. Such refusals showed how principled you were. High textualism also sustained an odd kind of interpretive machismo--it showed how tough-minded you were.
Oh, important conservatives cracked now and then--Judge Bork waffled on Griswold and Professor McConnell wrote a stunningly honest attempt at an originalist justification of Brown v. Board, for the stated reason that originalists were always going to be hindered in their efforts unless they could domesticate the case--but for the most part this strand of thought turned indifference to consequences into an affirmative virtue.
In analyzing the debate over the OLC memoranda it is important not to understate the connection conservative thinking forged between principle and a strangely abstract and reified conception of the law. This conception extended, for example, to the deliberate execution of prisoners. Here is Judge Alex Kozinski, a brilliant jurist and part of this movement, in Calderon v. Thompson: "The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process." Of course not, for that would be to care whether the person lived or died, which was not part of the text of the en banc rule system.
On this account, consequences were Congress's problem and to take them into account in choosing among alternative readings was to "legislate from the bench" and thus to undermine the rule of law. (Obligatory reference to the story of Holmes, on being urged to do justice, replying that it's not his job. "If my fellow citizens want to go to Hell, I will help them. It's my job.")
Pierce v. Underwood, 487 U.S. 552 (1988), which issued when Messrs Yoo and Bradbury were in law school and which was much discussed, at least among me an my friends at Boalt, represents this point of view nicely. The EAJA provided that a party prevailing against the United States could get attorney's fees unless the position of the United States was "substantially justified." In deciding what that phrase meant, Justice Scalia eschewed legislative history and found the meaning of the term plain by looking to what similar language in the APA and the FRCP meant.
To interpret language in one statute, in other words, the Court looked to another statute, thus treating the language of the US Code as a sort of Congressional dictionary. Sound familiar?
Why bother with this move, especially in preference to legislative history on the provision at issue? For standard textualist reasons: the only thing everyone material to the process agreed on was the text, to depart from the text is thus to make rather than interpret law and to deprive the law of its predictability, and thus to commit the sin (see above) of legislating from the bench.
One committed to this view would be extremely reluctant to depart from the text because, on this view, to do so was profoundly illegitimate. So even if the State and Defense Departments had settled ideas about what amounts to torture, and even if these ideas served them and the country well, such understandings would be merely one source of extra-textual input. Absent compelling evidence that Congress specifically intended to adopt these understandings, the textualist working to stay out of the shadow of activism would prefer a dictionary to experience, genuinely strange as that might (and does, to me) seem.
John Yoo and Steve Bradbury (neither of whom I know well, though I at least know John well enough to say hello at conferences) went to law school in the heyday of such thought. They acquired their positions by rising through networks that took these concerns very seriously. I am sure they took these concerns seriously, too, and, let's be clear, these concerns are perfectly legitimate. I do not share them in anything like the degree my more conservative friends do, but they make important points and are a legitimate part of mainstream legal discourse.
The problem is that they are a part and not the whole. To conceive of them as the whole is to produce unhelpful--possibly bizarre--legal advice. To conceive of the law as detached from politics in general, and in particular from concern for the consequences of legal interpretation, is to isolate law from the considerations that lawyers and judges have to take into account to produce anything like what an ordinary person would call good judgment. Indeed, such abstraction may well produce an account of the law incoherent to citizens who live their lives immersed in concerns about consequences and implications rather than democratic theory and the comparatively abstract anxieties of textualism.
This rush from judgment, as I want to call it, has always seemed to me the fatal flaw in the conservative legal critique I have been describing. The critique has important elements of truth to it but, followed to its logical conclusion, it commits sins far worse than being seduced by politics: It becomes impractical and, thus, unhelpful, terms I think are far more damning than any theoretical condemnation one might offer.
Lawyering and judging are practical, not theoretical activities. Real things happen to real people because of them, and it would be a perversion of the concept of judgment to ignore that. Pierce actually illustrates the point, because the US Code does not contain a principle defining when two sections are similar enough to interpret one off the meaning of the other. That requires judgment, and abstract theoretical concerns are the enemy of good judgment.
For me all this implies three things: (1) Judgment--personal, subjective, debatable, and in some sense extra-textual and perhaps extra "legal" judgment--is inescapable in judging, writing opinion letters, and every other aspect of law. (2) Running away from this sort of judgments does not escape or eliminate them but often makes them worse. (3) Such judgments do not undermine the rule of law, which has and will continue to depend upon them for its coherence and resonance with those who live under it, but trying to deny the importance of such judgments can make laws seem absurd.
This analysis implies three things. First is that we need stronger evidence than has been produced to date to question the sincerity of the lawyers whose work has been questioned. Their work seems on its face to fall within the parameters of a respectable interpretive approach (though perhaps near the edge of those parameters). Indeed, it is the approach that, through presidential election and judicial appointment, has been ascendant for a generation. The lawyers in question got their jobs in part, I suspect, because they genuinely hold the views implied by modern legal conservatism. If correct that assumption supports a presumption that they operated in good faith. Perhaps evidence rebutting that presumption exists, but accusations of bad faith should not be advanced unless and until we see it.
Second, we should consider whether we want an agency devoted to abstract legal interpretation, as some have suggested the OLC should be. This argument has been advanced on the theory that the lawyers in question chose to write opinions about what might be defensible under the statutory language, as a private attorney might, rather than opinions stating what they believed. As mentioned above I do not think the record to date supports claims of bad faith. More fundamentally, though, suppose one grants that these memoranda reflect the sincere belief of persons whose legal skills were forged in the culture I describe here. Do we want abstract opinions that consider only the law and not interpretive consequences? I, for one, do not.
Ergo my third conclusion: We know the tree by its fruits. We need an axe.
DM