I love fancy dress balls. I love those little black masks, held like lorgnettes, that people wear over their eyes. I love the feeling of becoming someone else, for awhile, just by putting on new clothes, or a cape, or a funny hat. These days, I'm seeing Judge Alito treat the confirmation hearings like a fancy dress balls. These days, he's mostly wearing one of those grey, frizzled and beribboned Rumpole-of-the-Bailey wigs, the ones with the little ponytails down the back, that barristers wear. What he really wants to wear, though, is the other one -- the long one that falls below the shoulders and down the back, with loops of curls from top to bottom, no ponytail, no frizz -- the Big Wig. He's trying it on now, at his confirmation hearings. But neither his little Rumpole wig, nor the Big Wig, fits him well.
Sometimes, a lawyer's job is simply to present, to the best of her ability, another person's point of view. She's no more than a mouthpiece, a hired gun. When that is the case, her personal opinion, for the most part, is irrelevant; her personal opinion is not what the client is purchasing. What the client is purchasing is her skill -- and sometimes, her mere cleverness -- at convincing a judge, jury, or arbiter that his (the client's) opinion should hold sway. The lawyer's job is simply to craft a plausible legal argument in support of her client's opinion.
The standard for succeeding at one's job as a hired gun isn't all that high. Meet the so-called "laugh out loud" test, take a position that doesn't make a judge or jury break out into derisive laughter, and you've avoided sanctions for your client and malpractice for yourself. Of course, ultimately it depends on how ridiculous the client's opinion; some opinions are sure to make your mouth twitch more than others. But after everything is said and done, anything short of laugh-out-loud funny is pretty much all the client can absolutely demand. When the goal is simply to find some legal support for your client's point of view, then skill and cleverness converge.
When a lawyer's client is the United States, however, the lawyer is never a mere mouthpiece. When the lawyer's client is the United States what's being hired is brainpower of a different sort; What's being purchased is ability and competence at finding law, understanding law, interpreting law, communicating law, and applying law. When the lawyer's client is the United States, her job is to make sense of law so that she can guide the government. Her job is to provide guidance so that government can be administered her client according to lawful methods, by lawful behaviors, towards lawful goals. When the lawyer's job is to guide her client, then -- at least at some level -- it's the client's opinion that doesn't matter. The fact that the client would like a proposition to be lawful is the alpha and omega of the hired gun. But that is only the beginning of the government lawyer's inquiry.
When a lawyer's job is to provide guidance towards lawful behavior, brainpower must bring more than cleverness to bear. Guiding someone's behavior involves the guide's moral and intellectual integrity. What's at stake is not just being able to 'make the argument.' What's at stake is much greater than avoiding laughter. What's at stake is getting it right.
Even when, for reasons of policy, the government wants to push the boundaries of older interpretations of the law, it is not now, nor has it ever been, good enough just to meet the avoid laughter, avoid malpractice, 'good faith' standard. Because even -- and especially -- when policy wants to push the boundaries of the law, what's at issue is not a 'good faith' basis for change, but a well-reasoned, well-founded basis for change. And that's where integrity enters into the job.
In this context -- and the whole point of my diary is that this is the context -- Judge Alito's attempts to distinguish between the "personal" conclusions he reached about Roe v. Wade while working as a government lawyer, and those he might reach as an Associate Justice of the Supreme Court, are entirely specious. As a government lawyer, his job was to make the best researched, best reasoned, best founded interpretations and applications of law that he was capable of making. That's what he was hired to do and that is, presumably, what he did. If ever Alito did his job as a government lawyer, if ever he did his job with intellectual and moral integrity, then his conclusion that Roe was wrongly decided was based on his utmost effort at researching, reasoning, and applying the law. So, when we consider Alito's work on interpreting Roe, whether or not it is his personal opinion is not really at issue. It either was, or was not, his personal best.
Judge Alito is trying to say, these days, that when he came to his legal conclusions about Roe for the Reagan administration, he was just wearing his Rumpole wig -- he was someone else's brief. If we let him wear the Big Wig, though, he promises to be his own man. But the funny thing about those wigs is that you can still see the wearer's real hair underneath them. Alito's Rumpole wig never did cover him completely. He was not hired as Reagan's brief; he was hired as an interpreter, a guide. His reasoning back then wasn't a put on. This isn't really a fancy dress ball, and for these confirmation hearings, Congress need not pretend that it is.