Should Law Be Politics Savvy? By Daniel H. Lowenstein

Daniel H. Lowenstein is a professor at UCLA Law School and the author of "Election Law."

Last year, the U.S. Supreme Court ruled that Paula Corbin Jones' sexual-harassment suit against President Bill Clinton could go forward while he was still in the White House. That decision caused what many are now calling the Lewinsky scandal.

True, the Supreme Court's decision was not the only cause or the most important one. It was what we in law schools like to call a "but for" cause. But for the Supreme Court's go-ahead, Monica S. Lewinsky, Linda R. Tripp and Kathleen E. Willey would be household names only in the households of their families and friends.

If the Jones case had been put on hold, there would have been no depositions. If there had been no depositions, there would have been no occasion for Clinton allegedly to commit perjury or suborn perjury by others.

For better or worse, seven men and two women made a decision that, so far, has shaped the political agenda for several months--with no end in sight. Not too many decisions by judges have had such immediate and dramatic effects on political life.

But in ways less visible to the general public, the Supreme Court exerts enormous influence over government by the people in America. Since 1964, the court has revolutionized the methods for electing members of Congress, state legislatures and countless local bodies; laid down the limits for regulating campaign finance; set the bounds for direct legislation by voters through the initiative process, and restricted the ability of states to structure political parties. Those are just a few highlights.

Who are these people who set the terms by which Americans can govern themselves? What, in particular, do they know about politics and government?

One way to approach that question is to ask about their political experience. Only one, Justice Sandra Day O'Connor, served for a time in a state legislature. (Drop the Arizona district she represented into a California Senate district, and you will never find it again.) Another, Justice Clarence Thomas, headed a small federal agency.

That's about it. The rest of the prior experience on the Supreme Court consists mostly of private law practice, law-school teaching and judging on lower courts.

It hasn't always been that way. Consider some of the best-known members of the court only a few generations ago. Chief Justice Earl Warren had been governor of California. Hugo L. Black served in the U.S. Senate. Robert H. Jackson was attorney general of the United States. Felix Frankfurter and William O. Douglas were important framers of the New Deal.

Admittedly, experience is only a rough indicator of political understanding or wisdom. John Marshall Harlan demonstrated both during his tenure on the court, though he had no particular political experience. Judgments will vary on which justices possess these qualities. My own opinion is that not since Justice Byron R. White retired in 1993 has there been a single justice with anything close to the political understanding of a Warren, Frankfurter or Jackson.

It is not only on the Supreme Court that decisions profoundly affecting our political system are being made by political naifs. To return to the Lewinsky affair, consider those two adversaries, independent counsel Kenneth W. Starr and Clinton attorney Robert S. Bennett. Even their fiercest critics generally concede that each is an excellent lawyer. But both have been criticized, even by persons sympathetic to their causes, for making decisions on what seem to be narrow legal grounds, without regard to the political setting.

Is it a bad thing that legal and constitutional questions profoundly affecting U.S. democracy should be guided by lawyers and made by judges with no experience and no particular understanding of how politics and government work at high levels? After all, don't we often say emphatically that we want judges to decide these questions on the law and, above all, not on political grounds?

We not only say it, we act on it. To take an important example: Almost all the justices appointed to the Supreme Court in the past few decades have had previous judicial experience. Why? Because presidents figure a nominee without such experience will have a hard time getting confirmed. No nominee has been challenged by senators for lacking electoral or Cabinet experience. By current standards, Warren, Jackson and Frankfurter, among many others, would have been practically ineligible for the court.

Presidents and senators who apply these standards reflect popular views that can be traced at least as far back as Thomas Jefferson and are specifically associated with the Progressive movement of the early 20th century. In the progressive tradition, there is no great mystery to democratic politics. Voters, candidates and public officials are supposed to act rationally and with public spirit to serve the general interest. Interest groups, parties, indirect procedures and other institutions that get in the way of the simple application of rationally formed public opinion to public problems are, at best, obstacles to good government and, at worst, signs of corruption.

From a progressive standpoint, there are two reasons not to taint the process of constitutional adjudication with politics. First, the law itself is supposed to be a rational system of rules embodying the public interest. "Political" adjudication means interested or corrupt adjudication. Second, the principles of progressivist government are so simple that no particular experience or specialized understanding is required.

Yet, despite its many attractions and its grounding in the American tradition, progressivism is not a reliable blueprint for good government. Most voters are too busy to acquire the information needed for "rational" opinions on public issues. Candidates and public officials, however committed to ideals of good public policy they may be, also want to stay in office. Good-faith deliberation does not always lead to consensus, in which case compromise is necessary. Too often, the "public interest" turns out to be what you and I believe, while those who disagree with us are a "special interest."

A different tradition in U.S. political thought can be traced back to James Madison and his co-authors of The Federalist Papers. In the Madisonian view, government by the people is not at all simple. Indirect means will often be preferable to direct. Special interests may not be lovely to look at, but if we try to wish them away when we design our political procedures, we will be all the more vulnerable to their rapacity. Experience with the messy ways of politics is a more valuable guide than the most impeccable logic.

In one sense, the Madisonian will agree with the progressivist that constitutional adjudication should not be political. In one of its meanings, "political" means "infected by partiality." No one wants a prosecutor who is out to nail members of the opposite party or judges who make partisan decisions.

But politically informed adjudication does not have to be biased. Decisions in cases like the Jones suit are going to influence the workings of our democracy whether we like it or not, and we should want them to be made by people selected because of their understanding and wisdom--above all, their political understanding and wisdom.

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