I admire and respect Noah Feldman's writing on the religion clauses. I think that his piece on the intellectual origins of the Establishment Clause was extremely well done. While I don't agree with many of the claims in "Divided by God," particularly the "and what we should do about it" prescriptions, and while I don't think that at least some of the arguments in the book are original to Feldman, I thought the book was well done overall.
Which is why I am sorry to see another op-ed piece by Feldman that advocates a politicized judiciary and extols the virtues of Supreme Court justices who "play politics" (here are my previous thoughts -- mostly negative -- on similar views of his in Slate). Feldman writes that the recent criticisms of Justices Scalia and Thomas for entering too much into the political fray fail to account for the fact that past Justices were not at all shy about their political attachments and biases. His evidence consists primarily of Justices in history who resigned their positions to pursue political office (Justice Charles Evans Hughes) or who were unsuccessfully recruited to do so (Justice Douglas). He points to Justice Jackson's decision to suspend his judicial duties to take on the Nuremberg prosecutions and to Justice Owen Roberts's chairmanship of a commission investigating the Pearl Harbor attacks.
These political experiences, says Feldman, because they were obtained during the course of judicial tenure, enriched the Justices later opinions. Feldman doesn't quite say that it was exactly because of his political experiences that Justice Jackson wrote the opinion he did in Eisentrager, but he comes close. I have no objection to the idea that a judge's experiences, political and otherwise, will influence his or her judgment. But he draws strange conclusions from something like the obverse claim -- that non-political Justices make distant and isolated decisions -- in the following:
Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.
I don't understand this argument, or if I do understand it, I wish I didn't. Is Feldman saying that had the Justices understood what it's like to be President, they wouldn't have ruled the way they did in Clinton v. Jones? My initial response is to wonder why not? What difference should it make that some of the Justices were, or were not, drinking buddies of President Clinton when that case was decided? Does Feldman think that their positive or negative relationship with Clinton ought to have affected their judgment? Should the Justices have realized -- in virtue of their keen political sense -- that a decision against Clinton would empower Osama bin Laden, and that they ought therefore to decide accordingly? Long live Judge Handy.
In much of the rest of the piece, Feldman criticizes conservatives for casting a skeptical eye at liberal Justices who hobnob with liberal opinion-makers, and liberals who do the same for conservative Justices. I suppose this is intended to lend the piece an air of even-handedness. But, in my view, it masks an objectionable view of the nature of judging. Judging is an activity in some sense, at least aspirationally, set apart and removed from the push and pull of politics. Of course it is true that judges are not and cannot be completely isolated from the political world that the rest of us inhabit. Of course. But it's one thing to recognize that fact and nevertheless aspire to a different ideal, and it's quite another to ridicule the aspiration to judicial integrity and the distinctness -- which is to say, the separateness, and in some fundamental way, the isolation -- of legal judgment from the political world.
It's all too easy to mock "medieval vestments" and "monk"-ishness: like shooting fish in a populist barrel. More important, the argument that throwing off these trappings of a backward set of ideals and aspirations would actually improve the law, let alone the regard in which judges are held, seems dead wrong to me.
