Today I attended a talk by Ilya Shapiro, editor-in-chief of the Cato Institute's Supreme Court Review, on federal judicial appointments. The first half of the talk covered federal judicial nominations under Presidents Reagan, H.W. Bush, Clinton, and Bush. Of all the statistics he gave us, Mr. Shapiro thought the most interesting was that of all federal judges currently serving, the majority were appointed by President Clinton. But this isn't what I want to talk about.
The second half of the talk was about possible nominations President Obama will make if vacancies occur on the SCOTUS. Mr. Shapiro is not one to mince words, and he said that chances are the nominee will be some combination of female and minority. Of the candidates on the short list, I found Harold Koh, the Dean of Yale Law School, to be the most intriguing; not 'intriguing' as a matter of, "Yeah, I want this guy on the SCOTUS," but more 'intriguing' as a candidate worthy of discussion in this forum.
Harold Koh, if appointed, would be the first Asian Supreme Court Justice. If I were Asian then I might care about this in some sort of show of solidarity for my brethren. But I'm not, so I don't. Besides, I thought Ms. Themis was blind (or was that Dike? Or was it actually Astraea? Maybe Plato's representation of Socrates shouldn't have been executed for impiety because it's a lot easier to keep track of a single Demiurge then an ever evolving Pantheon? Sure, the Romans cleared this problem up, but going with Justitia would have given the game away too easily).
Getting back on track, the interesting part about Mr. Koh is that Mr. Shapiro portrayed him as someone who believes in the "one world government of legal jurisprudence;" that Mr. Koh is of the opinion that international law is binding on US courts. My initial reaction was that maybe this Koh guy ain't so bad: one world government of legal jurisprudence would be awesome for predictability, one of the things that we (future) lawyers crave. I quickly retreated from this stance.
The most obvious problem is that we don't have one world government. One of the norms of international law is that there is supposed to be international comity, or respect for the laws of other nations. Last semester I was working on an extraterritorial antitrust problem and this concept of international comity was central to the discussion. Absent a treaty, it is not clear at all who is supposed to be respecting who's laws, which is why absent significant assets in the US the best result you're gonna get from an extraterritorial violator of the Sherman Act is a settlement.
But this isn't enough to disqualify him in my opinion. And in this age of meaningless plurality opinions handed down by the SCOTUS, it might be fun to have a liberal lion filing Scalia-like opinions to entertain future generations of law students. Did that last sentence just disqualify me from holding high office?
3 comments:
". . . one world government of legal jurisprudence would be awesome for predictability, one of the things that we (future) lawyers crave."
I have to disagree with this statement. Lawyers, i.e. the future of "us," thrive off of ambiguity in the law. Ambiguity drives legal arguments leading to the employ of many a lawyer.
Personally I suspect there is a principal-agent problem here. Lawyers want to get paid, and the only way to get paid is to argue. The only way to argue is to have a disagreement, and the only way to have a disagreement is to have an ambiguity. (Otherwise a lawyer will be held in violation of ethical statutes for asserting frivolous claims.) Hence, lawyers do not want predictability.
QED
QED what? That trial attorneys are bloodsuckers? We all know that. But most of us won't spend a career in the court room exploiting poorly written law or ambiguous precedent.
The gainful employment of more trial attorneys through legal ambiguities is not a good thing. Ambiguity leads to waste, i.e. more adverse parties wasting money on trial attorneys arguing about law that could be and should be as predictable as possible. As someone who enjoys the transactional side of things I'd much rather my clients spend their money developing new products than wasting it at trial arguing poor law.
Additionally, just because there is a principal-agent problem does not mean that we should exploit the problem. If a problem has been identified, then we should try to solve it. Right?
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