January 6, 2005

A Law Degree of Separation

Justin Katz

The thing about lawyers — as about salesmen — is their ability to persuade people into forgetting well-formed opinions and garnered knowledge about their occupation. Of course, most lawyers are ethical, and many rise beyond that boundary to become downright admirable. The point is that they've honed an approach to addressing problems that one oughtn't forget when dealing with them — particularly when dealing with them in public debate.

Generally speaking, until they are judges, it is less their calling to determine what the law is than to argue that what it is plausibly serves a client's interest. In most of our dealings with lawyers, in other words, we hire them to make our causes their own, and it is easy to think the best of somebody who's on our side.

I'm certainly writing in broad strokes, here, but my purpose is to suggest that lawyers will inevitably — and rightly — bring their talents to bear when arguing their own interests. As John Tarantino, Esq., writes in a Providence Journal piece, lawyers try their best "to represent clients zealously," and one would expect them to do no less when their "client" is an issue about which they care. In Tarantino's case, the craftsmanship is evident in the very first clause:

EDWARD ACHORN recklessly expressed the fear that our courts could be governed by the will (and perhaps the whim) of the legislature, rather than by the rule of law.

What, the reader may wonder, is reckless in Achorn's expression — the manner or the substance? Such phrases as "his drive-by-shooting style" would seem to suggest that it is the manner that's reckless. But Tarantino's prayers "that the public never loses faith and confidence in our courts" suggest that the recklessness is in some degree related to Achorn's effectiveness.

Indeed, for all of his aggrieved personal offense, Tarantino never explains whether expressing the particular fear of an ethically compromised judiciary is reckless because it is impossible or because it is not to be feared even if real. He never says, that is, whether our "faith" should derive from evidence or from force of will.

Note that, although Tarantino is one of the lawyers researching the question at hand ("how the separation-of-powers amendment affects" the Lottery Commission), he offers not a shred of argument about it. He asserts the complexity of the analysis, saying, "There are no clear-cut answers to many constitutional questions." But he does not describe the complexity involved, nor the ease with which decisions pertaining thereto can be "shaded" to cut in one side's favor.

Although I'm not accusing Mr. Tarantino of anything untoward, an appeal to complexity is precisely what one would expect from a lawyer seeking to make the law say something that it does not; falsehood is often declared to be truth when buried under mounds of complexity. Again, the following may simply be error — not a crack in a deceptive construction — but it seems to me that a critical consideration could be slipping through a rhetorical loop in this paragraph:

Why? Because the legislature decided last year to allow Chief Justice Frank Williams the ability to exercise greater control over the judiciary's budget. Now, for those who truly are interested in separation of powers, isn't that a good thing? Shouldn't the judiciary have greater control over its budget? It seems to me that an independent judiciary (something we all want) is better served when the chief justice has reasonable control over the court's budget.

That reads a bit too much like a lawyerly maneuver pushing the rallying cry of "separation of powers" to knock down the related pillar of balance of power. By design, the judiciary is not "independent" on budgetary matters; however, it is now only dependent upon one other branch of government. Tarantino admits this when he calls the new policy "a sharing of budgetary control along lines that make sense." Why that makes sense is another aspect of the debate that Tarantino does not engage, but I'd suggest that an independent judiciary, which we do all want, is better served when:

  1. A single other branch does not have sole control over its purse strings, and
  2. Circumstances aren't such that the members of the judiciary — who are real flesh-and-blood people, not abstract scales balancing justice and churning out raw data on constitutional questions — might be tempted to assent to mutual corruption (Anybody who doubts that such a thing could happen should research the last few generations of the Bevilacqua family.)

At this point, readers can be forgiven for having been distracted from perceived indicators that "extrajudicial influences" mightn't be so imaginary — not the least because Tarantino never addresses them. Instead, he portrays the judiciary as the victim of "target practice." As if the one branch of our government run by unelected judges-for-life is just a delicate collection of public servants.

In deference to the feelings of this selfless elite, "decent persons will want to see how the issues Mr. Achorn complains about are presented, make their way through the courts, and ultimately are decided before they pass judgment." Of course, once the gavel has struck, the judgment of decent people will be absolutely moot. Writes Tarantino:

By the way, that is a good thing, not a bad thing. The courts are the places where these difficult issues should be resolved. Our courts, not our legislature, not our lawyers, and certainly not our newspaper columnists, should decide constitutional questions.

Not, apparently, by a passive public of decent people, either, whose trial subscription to the constitutional regime dictated by judges can never be cancelled.