January 11, 2017

Respecting the Process

Yesterday, Sen. Jeff Sessions, the new candidate for U. S. Attorney General began confirmation hearings in front of the Senate. I’m not interested in commenting here on Sen. Sessions fitness for the office of Attorney General, nor do I have any intention of commenting on the qualifications and fitness of his soon-to-be boss for the White House.  This is a business blog–primarily, at least–and, as Michael Jordan is rumored to have once put it “Republicans buy sneakers, too.“

But one bit of Sessions’ testimony yesterday caught my ear, in particular. In a response to Sen. Ben Sasse of Nebraska concerning when it would be legitimate for the government not to defend a law, Sessions stated that federal laws “should be defended vigorously whether or not the solicitor general agrees with them or not, unless it can’t be reasonably defended.” It’s the last part of that answer–the “unless” and what follows it–that bothers me.

Those who remember the last eight years or so might recall when then Attorney General Eric Holder made a similar pronouncement with regard to the “Defense of Marriage” Act, which defined marriage for federal purposes as the union of one man and one woman, denying federal recognition of any same-sex marriage.  AG Holder made the decision that the Department of Justice would no longer defend suits challenging the law in the face of growing doubts about its constitutionality.  (The Supreme Court confirmed that unconstitutionality in Obergefell v. Hodges.)  But AG Holder’s notion was a bad idea then, and it’s a bad idea now.

As advocates, lawyers are part of a process, and the process is sacred.  That’s what we trust in–not our views of the law or the facts; the process.  Follow the process, and justice will result, if not now, then at some point.  But you can’t short-circuit that process.  At one time, every law that’s on the books seemed like a good idea to someone, or it would never have been enacted.  And just like every litigant deserves a day in court, so does every law, because that’s how the process operates.

Deciding the constitutionality of a law is not the job of the legislature, and it’s not the job of the executive.  Ever since Marbury v. Madison, the judiciary has been the special guardian of our Constitution.  Under Article III of that document, the judiciary is empowered to hear only actual cases and controversies.  So what happens when one side of a controversy decides not to play?  You see, courts can’t raise every argument on their own.  They depend on litigants (and their lawyers) to raise a lot of this stuff, and, when litigants drop the ball (or refuse to pick it up in the first place), the integrity of judicial review may suffer.  It’s not for the present executive to undo the work of the last administration by allowing it to be picked apart by private interests in multiple lawsuits.  It’s that executive’s job to defend what has been passed and trust in the process to resolve unconstitutionality.  (And if it is simply a matter of policy disagreement, that is what the legislative process is for.) Placing the determination of what is “reasonable” in the hands of one person is misplacing that determination. It is one person infringing on the job of an entire branch of government. Being that Sessions accused the last administration of “breathtaking overreach,” I wonder if he recognizes the irony.