by John Greenya
Neither do I see the critics as offering a better alternative. Consider a story Justice Scalia loved to tell. Imagine two men walking in the woods who happen upon an angry bear. They start running for their lives. But the bear is quickly gaining on them. One man yells to the other, “We’ll never be able to outrun this bear!” The other replies calmly, “I don’t have to outrun the bear, I just have to outrun you.” As Justice Scalia explained, just because the traditional view of judging may not yield a single right answer in all hard cases doesn’t mean we should or must abandon it. The real question is whether the critics can offer anything better.
About that, I have my doubts. Take the model of the judge as pragmatic social-welfare maximizer. In that model, judges purport to weigh the costs and benefits associated with the various possible outcomes of the case at hand and pick the outcome best calculated to maximize our collective social welfare. But in hard cases don’t both sides usually have a pretty persuasive story about how deciding in their favor would advance the social good? In criminal cases, for example, we often hear arguments from the government that its view would promote public security or finality. Meanwhile, the defense often tells us that its view would promote personal liberty or procedural fairness. How is a judge supposed to weigh or rank these radically different social goods? The fact is the pragmatic model of judging offers us no value or rule for determining which costs and benefits are to be preferred and we are left only with a radically underdetermined choice to make. It’s sort of like being asked to decide which is better, the arrival of Hue Jackson or the return of LeBron James? Both may seem like pretty good things to the Cleveland sports fan, but they are incommensurate goods, and unless you introduce some special rule or metric there’s no way to say for certain which is to be preferred. In just this way, it seems to me that at the end of the day the critics who would have us trade in the traditional account of judging for one that focuses on social utility optimization would only have us trade in one sort of indeterminacy problem for another. And the indeterminacy problem invited by the critics may well be a good deal more problematic given the challenges of trying to square their model of judging with our constitutional design and its underlying values. So before we throw overboard our traditional views about the separation of the judicial and legislative roles, it seems to me we might all do well to remember The Bear.
WITH THE THREE POINTS I’ve briefly sketched here tonight, I hope I’ve given you some sense why I believe Justice Scalia’s vision of the “good and faithful judge” is a worthy one. But so far I’ve discussed mostly principle, not experience. And I run the risk of an objection from those who might suggest that there’s more in heaven and earth than is dreamt of in my philosophy. So, as I close, I want to make plain that the traditional account of law and judging not only makes the most sense to me as an intellectual matter, it also makes the most sense of my own lived experience in the law.
My days and years in our shared professional trenches have taught me that the law bears its own distinctive structure, language, coherence, and integrity. When I was a lawyer and my young daughter asked me what lawyers do, the best I could come up with was to say that lawyers help people solve their problems. As simple as it is, I still think that’s about right. Lawyers take on their clients’ problems as their own; they worry and lose sleep over them; they struggle mightily to solve them. They do so with a respect for and in light of the law as it is, seeking to make judgments about the future based on a set of reasonably stable existing rules. That is not politics by another name: that is the ancient and honorable practice of law.
Now as I judge I see too that donning a black robe means something—and not just that I can hide the coffee stains on my shirts. We wear robes—honest, unadorned, black polyester robes that we (yes) are expected to buy for ourselves at the local uniform supply store—as a reminder of what’s expected of us when we go about our business: what Burke called the “cold neutrality of an impartial judge.” Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should—to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system—the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievance. Judges who assiduously seek to avoid the temptation to secure results they prefer. And who do, in fact, regularly issue judgments with which they disagree as a matter of policy—all because they think that’s what the law fairly demands.
Justice Scalia’s defense of this traditional understanding of our professional calling is a legacy every person in this room has now inherited. And it is one you students will be asked to carry on and pass down soon enough. I remember as if it were yesterday sitting in a law school audience like this one. Listening to a newly minted Justice Scalia offer his Oliver Wendell Holmes lecture titled “The Rule of Law as a Law of Rules.” He offered that particular salvo in his defense of the traditional view of judging and the law almost thirty years ago now. It all comes so quickly. But it was and remains, I think, a most worthy way to spend a life.
May he rest in peace.
Acknowledgments
Thanks first to my Threshold editor, Natasha Simons, for fair commentary and judicious editing from beginning to end; to her able assistant, Hannah Brown; to Steve Troha of the Folio Literary Management, and especially to his colleague and my original agent, Jeffrey Kleinman, who pitched in at the very end to guarantee that I made my already stretched deadline. (In the writing of some two dozen books, I’ve never before had an agent who put so much time and effort into helping finish the book.)
Next, thanks go to friends and family for their support and encouragement: various Greenyas—Bob, Jim, Tim, Kris, Bobby and Mare, and Genie Greenya Teter; Jeff Teter for dinner in Denver, among other favors, and his father, Jim Teter; hometown friends Andy Clarke, Bill McCarty, Lou (and Honey) Patscot, Don Gral, Joe Heil, Ray Laub, Mary Stevens Fuller, Tim Cowdin, Jim Boyce, Tom Cincotta and his sister-in-law Nancy S. Cincotta, and, most especially, my favorite Christian, Christian (“Chris”) Harwich, journalist-turned-lawyer-turned-public-defender, for advice and support on many fronts. Special thanks to my grandchildren Samantha (“Sammy”) Greenya, who worked on the book during her first college summer, and her sister and brother, Alexandra (“Lexy”) and Will.
Thanks also to far-flung friends John Florescu (Bucharest), Joe Lauria (New York City and Iraq), Californians Jim Dunn, Peter and Roz Bonerz, and Charlie Siebert and his son Chris, Bob, and Anne Ganz (Martha’s Vineyard), and Mike Wustner (Bali).
Nearby friends: Herb and Betty Karp, Bud and Connie Hart, Katy Segal, Nick and Mary Lou Kotz, and the gang at Moose Lodge 1695 in Warrenton, Virginia, especially Robin the Reader Woodward, Wayne (“Wanker”) Harne and Cindy, and Tom Jacobs; Dr. Anna Hauptman, GWU President Emeritus Steve Trachtenberg, and all the artists at Puglisi’s barbershop in Washington, D.C.
Thanks to many lawyers, but especially: F. Lee Bailey, Mahlon Brown, Plato Cacheris, John Crigler, Steve Grafman, Henry Gonzalez, Chris Harwich (again), and Roger Zuckerman.
Thanks to two fine people I met years ago who had worked for and with the late Anne Gorsuch Burford: attorney John Daniel and Cristina (“Cristy”) Bach Yeutter.
And, finally, for renting me the most beautiful spot in which to write, the Lady and Lord of Wildcat Mountain (Virginia), Jocylyn (“Lili”) Alexander and her fiancé Roland Word.
About the Author
JOHN GREENYA, a widely respected Washingtonbased writer, and the author or coauthor of more than two dozen books, writes frequently about the law. His books include: The Real David Stockman, Blood Relations, and Silent Justice: The Clarence Thomas Story. His collaborations include Law and Justice in the Reagan Administration (with former US Attorney General William French Smith), For the Defense (with F. Lee Bail
ey), Are You Tough Enough? (with Anne Gorsuch Burford, Judge Neil Gorsuch’s mother), and Not Guilty: The Unlawful Prosecution of US Senator Ted Stevens (with Rob Cary). His writing on the law and true crime has appeared in The Washington Post, and his work has appeared in such other publications as The New York Times, Los Angeles Times, The New Republic, People, and USA TODAY, among others.
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Notes
“You saw a very well planned out”: “How Trump Picked Supreme Court Nominee Neil Gorsuch,” Eric Spillman, CNN wire, February 1, 2017.
Senate Minority Leader Chuck Schumer called him an “ideologue”: “Schumer: Democrats will filibuster Gorsuch nomination”: Robert Barnes, Ed O’Keefe, and Ann E. Marimow, Washington Post, March 23, 2017.
One commentator wrote: “The Conservative pipeline to the Supreme Court,” Jeffrey Toobin, The New Yorker, April 17, 2017.
The morning after the hearings opened: “Supreme Court Nominee Neil Gorsuch’s First Day of Hearings,” Robert Barnes, Ed O’Keefe, and Sean Sullivan, Washington Post, March 20, 2017.
In a 2004 tribute: “Six of the Greatest,” Ben S. Aisenberg, The Colorado Lawyer, May 2004.
Shortly after the president nominated Gorsuch: “Simply Stated, Gorsuch Is . . .” Kimberly Kindy, Sari Horwitz, and William Wan, Washington Post, February 18, 2017.
Dr. Steven Ochs recalls: Author interview, April 11, 2017.
Tom Conlan remembers that: Author interview, April 13, 2017.
Jonathan Brody, one of his closest childhood friends: Kindy, Horwitz, and Wan.
For example, in late February 2017: “Neil Gorsuch’s Late Mother Almost Annihilated the EPA,” Newsweek, February 1, 2017.
When the White House lawyers came to Burford: Are You Tough Enough? Anne Burford with John Greenya, McGraw-Hill, 1986.
“Joe wants to see you: Ibid.
In the unlikely event: Ibid.
Shortly after Gorsuch was nominated: “Class of ’91, Obama and Gorsuch Rubbed Shoulders at . . .” Joanna Walters, The Guardian, February 5, 2017.
Barack Obama decided to go home to Chicago: “The Crazy Reason Why Barack Obama Didn’t Want to Be a Supreme Court Clerk,” Staci Zaretsky, Above the Law, May 26, 2017.
Some of John Finnis’s views are very controversial: “Neil Gorsuch had a tense exchange,” Tessa Berenson, Time, March 21, 2017.
After graduating from Oxford: The Future of Assisted Suicide and Euthanasia, Neil M. Gorsuch, Princeton University Press, 2006.
But at the time of his confirmation: “Neil Gorsuch writings reveal his support for Coors . . .” Monte Whaley, Denver Post, February 12, 2017.
Todd C. Peppers, who teaches at Roanoke College: “How Gorsuch the Clerk Met Kennedy the Justice,” Adam Liptak and Nicholas Fandos, New York Times, February 3, 2017.
Each year the Court receives thousands of petitions: “Neil Gorsuch the Law Clerk,” Matt Walsh, SCOTUSblog, February 24, 2017.
“He took a shine to me”: “Supreme Clerks,” John Greenya, Washington Lawyer, May–June 1992.
“The Supreme Court clerk of today”: Ibid
“Neil went to Oxford”: “Simply Stated, Gorsuch Is . . .”, Kindy, Horwitz, and Wan.
One Gorsuch relative: “Supreme Court Pick Neil Gorsuch’s stepmother breaks . . . family silence,” Daily Mail, February 3, 2017.
Attorney Wan Kim: Wan Kim, author interview, July 25, 2017.
Also serving with Gorsuch: Lily Fu Claffee, author interview, July 25, 2017.
Reporting for Law360: “The Rocky Road to the Confirmation of Judge Neil Gorsuch,” Michael Macagnone, Law 360, April 7, 2017.
The Law360 article continues: Ibid.
On March 22, 2017, New York Daily News reporter: “Neil Gorsuch Questioned About Role in Bush Administration,” New York Daily News, March 22, 2017.
One of those lawyers was Baine Kerr: Author interview, March 24, 2017.
“He had been on the court”: Ibid.
“I think I was up there”: Ibid.
Not surprisingly, Mr. O’Rourke has a clear and vivid memory: Author interview, April 17, 2017.
Would Patrick O’Rourke agree: Ibid.
On February 1: “What Gorsuch’s Old Newspaper Columns Say about Him,” Amy Wang, Washington Post, February 1, 2017.
“[H]e criticized protesters”: Ibid.
“The Hatch Valley may be to chiles”: “Gorsuch’s Opening Words Speak Volumes About His Style,” Stan Parker, Law 360, February 1, 2017.
Former O’Connor clerk David Kravitz: “Why we should ignore Scalia’s nasty zingers,” David Kravitz, Washington Post, July 31, 2015.
Paul Anthony, a longtime television and radio: Author interview, June 30, 2017.
Chuck Conconi is another: Author interview, September 6, 2017.
In an article headed: “Neil Gorsuch’s conservatism is different from Antonin Scalia’s,” The Economist, March 23, 2017.
Veteran National Public Radio: “Neil Gorsuch Votes 100 Percent of the Time with Most Conservative Justice,” NPR, July 1, 2017.
On February 1, George F. Will: there is no philosophizing in the Constitution: George Will, Washington Post, February 1, 2017.
In it, he expressed his opinion: Charles Schumer, “We Won’t Be Fooled Again,” New York Times, February 10, 2017.
“unlikely selection”: “Ayotte to Lead White House team . . .” Philip Rucker and Ashley Parker, Washington Post, January 31, 2017.
“We changed the Senate rules”: “Harry Reid . . . ,” New York Times, December 8, 2016.
“Whereas in the fall of 1980”: “Hart Building Opens Under Protest,” United States Senate, November 22, 1982.
“a threat to our American values”: Shannon Young. Masslife, February 1, 2017.
“Our political views span the spectrum”: “Former Law Clerks Herald Supreme Court Nominee Neil Gorsuch’s Independence,” Richard Wolf, USA Today, February 14, 2017.
“To this senator”: Chuck Grassley, “Grassley Statement at a Hearing on the Nomination of Neil Gorsuch to Serve as Associate Justice of the Supreme Court,” March 20, 2017.
“part of a Republican strategy”: “Durbin Calls Gorsuch Nomination . . . ,” Peter Stevenson, Washington Post, March 20, 2017.
“Under the rules”: “Judge Gorsuch and the Frozen Truck Driver,” Paul Callan, CNN, March 21, 2017.
When, on April 7, 2017, Neil: Siraj Hashmi, “Scotus Frat? Neil Gorsuch to get hazed,” redalertpolitics.com, April 10, 2017.
In an article headed: “Neil Gorsuch Sounded A Lot Like Justice Scalia On His First Day On The Job,” Cristian Farias, Huffington Post, March 17, 2017.
Gorsuch stayed silent for all of ten minutes: “Bitter fight behind him, Gorsuch starts day with relish,” Adam Liptak, New York Times, April 17, 2017.
According to the New York Times: “Amidst protests at Trump Hotel, Neil Gorsuch calls for civility,” Adam Liptak, New York Times, September 28, 2017.
And in Above the Law: “Judge Gorsuch on the campaign trail,” Kathryn Rubino, Above the Law, September 27, 2017.
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Aisenberg, Ben S., “Six of the Greatest,” Colorado Lawyer, May 2004.
Anthony, Paul, Author interview, June 30, 2017.
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Berenson, Tessa, “Neil Gorsuch Had a Tense Exchange Over Maternity Leave at His Confirmation Hearing,” Time, March 21, 2017.
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Callan, Paul, “Judge Gorsuch and the Frozen Truck Driver,” CNN, March 21, 2017.
Conconi, Chuck, Author interview, September 6, 2017.
Conlan, Thomas, Author interview, April 13, 2017.
Clafee, Lily Fu, Author interview, July 25, 2017.
Daily Mail, “Supreme Court Pick Neil Gorsuch’s Family Breaks Silence,” February 2, 2017.
Economist, “Neil Gorsuch’s Conservatism Is Different from Antonin Scalia’s,” July 26, 2017.
Farias, Cristian, “Neil Gorsuch Sounded A Lot Like Justice Scalia On His First Day On The Job,”Huffington Post, March 17, 2017.
Gorsuch, Neil, The Future of Assisted Suicide and Euthanasia, Princeton University Press, 2006.
Grassley, Charles, “Grassley Statement at a Hearing on the Nomination of Neil Gorsuch to Serve as Associate Justice of the Supreme Court,” March 20, 2017.
Greenya, John, with Anne Burford, Are You Tough Enough? McGraw-Hill, 1986.
—————, “Supreme Clerks,” Washington Lawyer, May/June 1992.
Hashmi, Siraj, “Scotus Frat? Neil Gorsuch to get hazed,” redalertpolitics.com, April 10, 2017.
Horowitz, Sari, with Kimberly Kindy and William Wan, Washington Post, February 18, 2017.
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