Tuesday, October 28, 2008

McGinnis on Fried
Mike Rappaport

I had forgotten my friend and coauthor, John McGinnis, had written about Charles Fried's political expediency at the expense of principle when he served as Solicitor General in the Justice Department:

In the first two paragraphs of his book review of Fried's book on his experiences at the Justice Department, John writes:

Professor Fried begins Order and Law, an account of his tenure as Solicitor General, with the admission that as a cloistered academic he was unprepared for the political hurly-burly of Washington. Order and Law thus demonstrates that adult education is always possible, because the book is often a political rather than a theoretical enterprise. Indeed, Order and Law follows the first rule of political biography that the writer is the hero of his own story. The reader is treated to a lively tale of Professor Fried's mostly victorious ride between his adversaries on the right and on the left, together with vivid portraits of the leading actors on the Reagan Administration's legal scene. Unfortunately, Fried's interest in political justification has an adverse effect on the book's contribution to scholarship and theory. Scholarship requires the sustained investigation of first principles wherever they may lead. The natural tendency of politics, especially bureaucratic politics, is to encourage confusion and shifting among principles to achieve the most advantageous appearance. Thus, what the book gains in political interest is often outweighed by the loss of dispassionate reflection by a leading academic on the unique office he once held.

In Order and Law, Fried tends to slide from principle to principle in order to position himself politically midway between his liberal critics  outside the Administration and his more conservative colleagues within. Nowhere is this tendency more evident than in his discussions of his role as Solicitor General. For instance, Fried defends a brief he filed urging the Supreme Court to overrule Roe v. Wade as grounded in jurisprudence rather than politics. "[T]he merits of the right-to-life versus freedom-of-choice [policy] dispute" were not relevant to his legal analysis. Less than a page later, Fried proudly recounts a victory over people in the Justice Department whom he labels the "federalism police." The "federalism police" argued that states were free to impose additional penalties for federal labor violations, despite the existence of federal labor laws. Fried favored preemption, because "leaving the states free to do as they liked posed a greater threat of overregulation than did giving precedence to federal law." Thus Fried avoids analyzing the doctrinal and jurisprudential issues presented in the case (such as federalism and the scope of preemption) by appealing to precisely the kind of policy decision (expansive vs. limited labor regulation) that he claimed to eschew in the abortion case.

I was actually one of those "federalism police," and I remember Fried's antics well.

I highly recommend McGinnis's review in the Stanford Law Review.    


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Mike Rappaport


*curious* A question, then? Since you were one of those "federalism police", would you say it's common for the solicitor general and the solicitor general's office to be more political or more "legal"? Was Charles Fried exceptional or unexceptional (or, alternately, normal or abnormal) in his actions as the Solicitor General?

Posted by: Elena | Oct 28, 2008 11:23:04 AM

how is it possible that someone as intelligent as you is ok with the possibility of a sarah palin presidency?

Posted by: Dennis Jez | Oct 28, 2008 10:48:52 PM

Dennis: Myabe I am less intelligent than you think, or Sarah Palin is more intelligent than you think. Hard to know!

Posted by: Mike | Oct 28, 2008 11:15:37 PM

Elena: My only experience first hand was with Fried at the SG's office. So I cannot say how they normally act. My guess is that they follow both legal and political considerations, like most everybody else.

Posted by: Mike | Oct 28, 2008 11:17:38 PM