The Weekly Standard
NO ACCOUNT OF A RULING by a federal judge these days is complete without a note on whether the judge was a Democratic or Republican appointee. Why is that? In theory, we should have judicial decisions that apply the law, not rulings based on the personal political preferences of judges. In practice, however, no one is terribly surprised when a ruling favorable to the GOP cause comes from a Republican-appointed judge or when a Democratic appointee comes up with a conclusion favorable to Democrats.
How cynical a view is this? Are the black robes really just camouflage for the indelible stamp of party affiliation guiding each judge’s decisions? That seems overwrought. From time to time you do run across a left-leaning outcome from a Republican appointee or a right-leaning outcome from a Democratic appointee. And even in cases where results conform to cynical expectations, one must not lose sight of the fact that Republican appointees tend to differ from Democratic appointees in their theories of jurisprudence.
For this reason, merely observing a left-leaning outcome and a Democratic tag (or a right-leaning outcome and a GOP tag) does not permit one to say, “Aha! A political hack on the bench!” You need something more than that. To get to “Gotcha!” you need to point to an instance in which a supposedly impartial judge, faced with two similar cases, reaches opposite conclusions in a way that happens to coincide with partisan interests — an instance such as the one produced when Supreme Court justice Ruth Bader Ginsburg recently dissented on the subject of the “protective-function privilege” asserted by the Secret Service to avoid testifying to Kenneth Starr’s grand jury about what its officers had seen and heard in the White House.
The issue before the high court in early November was whether to hear an appeal from the D.C. Circuit Court of Appeals. The D.C. circuit had little difficulty concluding earlier this year that there is no such privilege. The outcome was clearly unfavorable to President Clinton, who at the time was insisting that he had nothing to do with the decision of the Secret Service and its parent, the Treasury Department, to resist offering grand-jury testimony in Ken Starr’s investigation. One interesting question: Who, really, was making the case for the Secret Service? The answer is that government lawyers were. But who represents the government in matters related to the independent-counsel investigation? That was the question Judge Laurence Silberman addressed in a concurring opinion for the circuit court.
He reached the conclusion that the independent counsel himself, under the straightforward terms of the independent-counsel law, must be the representative of the government on all matters pertaining to his investigation. The Justice Department, which argues the government’s case in ordinary circumstances, can file a friend-of-the-court brief stating its views, but it can’t go to court in the name of the government against the wishes of the independent counsel. Therefore, neither the Treasury Department nor the attorney general speaking for the Treasury would have standing to oppose Starr in court. Had it been the president’s private lawyers propounding opposition, that would be a different matter. But in the Secret Service privilege case, the government, supposedly characterized by a unitary executive, was speaking with two voices.
Clearly, this points to yet another anomaly of the independent-counsel law. Silberman’s contention — he is the judge who wrote for the appeals-court panel that found the law unconstitutional, before the Supreme Court reversed that ruling in 1988 — has been controversial with commentators, though no one has offered a persuasive legal rebuttal. And as it happens, one person who used to agree with him on precisely this point is his former colleague on the D.C. circuit, Ruth Bader Ginsburg.
Back during the days of independent counsel Lawrence Walsh’s Iran-contra investigation, then-attorney general Richard Thornburgh, in opposition to Walsh, filed an appeal on behalf of the government in a national-security-related matter in the Oliver North case. The three-judge panel of the D.C. circuit, applying the independent-counsel law after the Supreme Court upheld its constitutionality, unanimously booted Thornburgh out the door, ruling in February 1989 that he had no standing to bring the appeal. Silberman was on the panel, as was Patricia Wald, one of the court’s liberal stalwarts — and Ruth Ginsburg.
Now, all of a sudden, the government, supposedly in the person of Treasury secretary Robert Rubin, shows up at the Supreme Court asking for a review of the D.C. circuit’s Secret Service ruling. What exactly Rubin was doing there is an interesting legal question, since the Justice Department is supposed to argue the government’s case. It looked like a dodge to get around the obvious problem of the statutory provision granting the independent counsel sole right to speak for the government on matters related to his investigation. In the event, the Supreme Court decided, 7-2, not to hear the “Robert Rubin” appeal. The two dissenters were the Clinton appointees, Stephen Breyer and Ruth Bader Ginsburg.
Of Justice Breyer, one would be straying into ad hominem territory to conclude that his view here wasn’t disinterested. Of Justice Ginsburg, one can fairly say: She should know better, and she used to. Why is she voting to review a case in which, by her own reasoning in a previous case, the party bringing the appeal can’t have standing to bring it?
It looks more like situational ethics than even-handed jurisprudence — with the only difference in the situations being that this time it’s not Republican Dick Thornburgh bringing the case with Ollie North in the dock but Democrat Robert Rubin bringing it with Bill Clinton on the hook.