a citizen’s journal by Thomas Nephew

On the irrelevance of “Balkinization” in particular and the legal profession in general

Posted by Thomas Nephew on May 25th, 2009

Balkinization” is a blog developed by Yale law professor Jack Balkin that, during the Bush administration, became the go-to web site without equal for analysis of the constitutional and legal issues posed by that administration’s actions and lawlessness. It is the place I once used to visit within minutes of a speech like Obama’s last week.

By now I know not to bother; the site has become increasingly bogged down in arcana, minutiae, and fantasies ranging (of late) from Supreme Court rotation schemes to familiar hobbyhorses like a new Constitutional Convention to placing California in political receivership.  (This puzzling output is leavened, to be sure, with occasional promotions of various and sundry arcane and/or oddly overconfident books authored or edited by the blog’s contributors.) The one voice at the blog who has been carrying on in the “Torture Memos” tradition is Brian Tamanaha, but he can’t and shouldn’t have to carry this kind of burden by himself.

I’m nevertheless a bit shocked that none of the dozen or so “Balkinization” bloggers have even now said anything about Obama’s (or Cheney’s) speeches, days after a President and a former Vice President essentially agreed that (1) it would be unwise to investigate and prosecute known acts of torture committed by Americans and planned by high American officials, and (2) that Bush-era notions of military commissions and preventive detention would and should become the modus operandi of the United States.

While other factors have no doubt played a role in “Balkinization’s” shockingly rapid decline into irrelevance,* I have to wonder whether the elevation of former “Balkinization” co-blogger Marty Lederman to the post of Deputy Assistant Attorney General at the Office of Legal Counsel has had something to do with it as well.  Not to put too fine a point on it, have Balkin, Levinson, Griffin, Graber et al been co-opted by the appointment of their friend and colleague?

If so, I’d have to wonder why any of them got into this line of writing in the first place.  If there was ever a time when a well argued, well written blog post might actually make a difference, this would appear to be it — a generally liberalish president, one who allegedly welcomes debate, one who may even read blogs and use the words he finds there, one who appoints people to high positions who read their former colleague’s postings.  Assuming they’ve meant what they’ve said for the past six or seven years when it was President Bush, Balkin and his cohort of bloggers should be pushing President Obama hard on these issues.  Instead, they’re nearly silent.

For that matter, where is Lederman on Obama’s preventive detention and military commissions scheme?  Is he drafting it or opposing it?  There’s a pixel trail suggesting that once upon a time, in principle, Mr. Lederman opposed prosecuting only those you were sure of convicting, and locking up the rest indefinitely. At this point, I’d be relieved just to learn that he’s still alive, let alone what his opinions are on ‘prolonged detention.’ Personally, I should think he’d resign from the OLC, judging by this. But who knows; he was once quite vocal that no one at OLC should be prosecuted for their egregious opinions; perhaps he was looking ahead.

Truth to tell, though, it’s not just a legal blog or one of their former colleagues who seem to be missing in action on this and other fundamental constitutional and legal debates.  The legal profession as a whole has not covered itself in glory — though the yeoman work of a few on behalf of Guantanamo detainees and their rights is a counterexample, and a few other voices like Glenn Greenwald and Scott Horton also brighten the darkness.

Consider: one president commits lawless acts — from authorizing torture to authorizing warrantless electronic surveillance to (lest we forget) authorizing a war based on lies his administration carefully nurtured.  He abridges rights enshrined in common law and the Bill of Rights, the Geneva Conventions — and in whatever natural law simple rats obey when they refuse to torture each other for a bit of kibble.  True, he becomes a figure of scorn, and the leader of the opposition party is elected in a landslide.  But that president appears to be determined to ignore the previous one’s lawlessness — indeed, seems to take positive pride in doing so.

And yet the tens of thousands of highly trained lawyers in this country do not rise up and object to that.  In Pakistan — Pakistan, for crying out loud —  lawyers literally took to the streets and battled police when General Pervez Musharraf sacked a Supreme Court justice there.  They literally impeached Musharraf and forced him out of office.

Here… nothing. Is the law in the United States a calling, a profession, or just a way for verbally clever people to network and make up new rules as they go along?

Never mind, don’t answer that.  I imagine Obama will come out with a Bright, Shiny Supreme Court nomination this week or maybe next one.  Most Americans will understandably focus on that, though there’s of course the slight possibility that nominee will voluntarily weigh in on Obama’s National Archives speech or Cheney’s Death Star one.

But just as with impeachment, a class of professionals ostensibly trained to notice and object when fundamental rights and fundamental avenues of redress are being frittered away are — by and large — saying nothing.  Although there are honorable exceptions to the rule, the rule is silence, and the rule is therefore consent.

It may be too early to conclude this, but it’s not too early to suspect it: the American legal profession has, as a class, forfeited its moral authority to protecting our civil liberties, our civil rights, and our human rights.  In this, they would merely join our media and political classes.  If so, Americans who care about these rights must look elsewhere for guidance.  I don’t know where that should be, but we should probably not look back.

* Notably several of the writers recently shutting down comments –the very best way not to notice your commenters are less interested in what you’re writing than they used to be.  (Admittedly, it’s also the best way not to have to read yet another comment by Bart DePalma.)
UPDATE, 5/25: “Balkinization” co-blogger Sandy Levinson posts “Further notes on constitutional dictatorship,” touching on the issues above in his first point.

9 Responses to “On the irrelevance of “Balkinization” in particular and the legal profession in general”

  1. Robert Nephew Says:

    I have kind of the same reaction. I think by training, most lawyers don’t worry about the forest; they are more focused on a beetle on the bark of a tree. Lawyers get a rush of adrenaline by finding an exception to the exception to the exception to the rule from some obscure case from 100 years ago. And don’t even get me started on judges.

  2. Nell Says:

    I quit reading comments there a long time ago because of Bart DePalma (well, really because other commenters, in particular Arne Langetsmo, wouldn’t ignore him). Rather than closing comments, they could just ban Bart, given his long, long run.

    On the other hand, I haven’t even checked in since a few weeks after Marty Lederman left, when the tendency was already in evidence for every other poster than Brian Tamahana.

    It’s too bad, because we could use some more lawyer bloggers explaining things to us NALs. Bmaz at Emptywheel can be helpful that way at times. You don’t have to wait for a relevant post, just ask a question (with ‘OT’ at the beginning) in the very active EW comments and he or one of the other lawyer commenters will often get around to it or point you in a helpful direction.

    SCOTUSblog has also been a lifesaver, but for obvious reasons are not a resource for things happening below the SC level.

  3. Nell Says:

    And yet the tens of thousands of highly trained lawyers in this country do not rise up and object to that. In Pakistan — Pakistan, for crying out loud – lawyers literally took to the streets and battled police when General Pervez Musharraf sacked a Supreme Court justice there. They literally impeached Musharraf and forced him out of office.

    It’s often overlooked and perhaps not widely known, but the exact issue over which the lawyers rose up was the participation of Pakistani security services in seizing people, holding them secretly, and torturing them.

    In the Pakistani case, the lawyers are an important constituency of the long-suppressed secular, democratizing political parties. Here, the liberal lawyers appear to believe that things will be fine because their “team” is in office.

    What’s mystifying is why they of all people don’t seem concerned about what a future administration can and will do with the Constitution-corrupting framework Obama appears to want to preserve and extend.

  4. Nell Says:

    Sorry, sorry, sorry.

    I should have previewed.

  5. Thomas Nephew Says:

    @Robert: Whew. I felt kind of bad about this post after publishing it, I painted with a bit of a broad brush. Yes, that’s exactly right, I think: missing the forest for the (beetles on the bark of) trees.

    sorry: Not a problem — I’ll fix the code so the italics end at “office”, if that’s OK; De Palma: can one selectively ban a single commenter with the blogspot comment system? In the Pakistani case, the lawyers are an important constituency of the long-suppressed secular, democratizing political parties: Well, maybe we’ll catch up with them in fifteen or twenty years — long-suppressed, democratizing, etc.

    Thanks for the emptywheel/bmaz pointer. Guess I’ll go there more often. Wheeler tends to get immersed in the case details down in the weeds, which can be good of course, but is also difficult to get a big picture with — or to follow if you haven’t been there in the weeds too from the start.

    PS: thanks for the shout-out about my Obama-Cheney post in your comment at Obsidian Wings.

  6. Nell Says:

    True, EW’s weedy, and the comments can be a gigantic time sink.

    Unless someone else steps up, Greenwald is probably going to be the best resource if and when Obama comes out with a concrete proposal for detaining without trial.

  7. mickarran Says:

    Robert’s comment is perceptive but not, I think, germane to the issue at hand. Lederman, Balkin, et al had no trouble distinguishing beetles from forests during the Bush Admin. Now that there’s a Dem Prez and Lederman’s in the Admin, they suddenly get lost in fine print? When nothing whatever has changed? Because as Glenn Greenwald (a Constitutional lawyer by training)has extensively documented, Obama’s policies have not changed Bush’s one whit. The normal Balkinization reaction should be outrage and the kind of fundamental legal discussion they specialized in with Bush.

    What’s the difference? A Dem, that’s the difference.

    I think you nailed it Thomas.

  8. Thomas Nephew Says:

    Apologies for the delay in approving your comment, Mick; I hadn’t checked between last week and a few minutes ago. — I think the factor you identify (misplaced loyalty to a Dem in the White House) is important, and I might have done well to mention it more clearly.

    By appointing people like Marty Lederman and Dawn Johnsen to OLC, and then pursuing policies that seem the opposite of what they advocated (or appeared to advocate), Obama has, not entirely by accident, also at best silenced them and at worst co-opted them. Johnsen is doubly under wraps in that she hasn’t been confirmed yet — in some ways as scandalous as Franken’s continued absence in the Senate. Obama has pulled out the stops for a “two inches and a cloud of dust” hair-splitter like Sotomayor, but there’s been no news about Johnsen since mid-May.

    That makes it all the more disappointing that the Balkinization crew — especially Balkin himself, but also others — haven’t been on the ramparts about a developing executive branch consensus that appears to okay lawbreaking in the past and undermines rule of law in the future. I can only suppose that’s due to what you’re talking about and some reluctance to appear to “call out” Lederman.

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