Tuesday, October 28, 2008
McGinnis on Fried
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:
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.
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
*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