Oil and Gas Lawyer Blog
As we are on the cusp of celebrating the 250th anniversary of the Declaration of Independence and the remarkable fact that our nation has survived so long, it seems a good time to share a speech given by Lee West at the Oklahoma Bar Association Rule of Law Conference at Oklahoma City University School of Law on April 11, 2008, published by the Oklahoma City University Law Review in Spring 2009, Vol. 34, Number 1. I had the pleasure of knowing Judge West, who was District Judge for the Western District of Oklahoma from 1979 until he took senior status in 1994, but he continued to serve as judge after that. He died in 2020, age 90. A wonderful interview of Judge West recounting his youth in Oklahoma during the Great Depression, published by the Oklahoma Historical Society, can be found here.
Below are excepts from his speech, which has remarkable parallels to current attacks on the rule of law. (I can provide a copy of the full speech to anyone who requests it.)
Good afternoon. It is a genuine honor to be among so many friends and colleagues. I may not deserve this honor, but I am recovering from kidney-stone surgery, and I guarantee you I do not deserve that either. This morning you have heard eloquent descriptions and defenses of the rule of law. After such fascinating presentations, I am hard pressed to add anything. Honestly, being asked to speak in the wake of so many distinguished judges, lawyers, doctors, businessmen, and academics feels a little bit like being asked on a date by a porn star. Any anticipation of personal enjoyment is tempered by performance anxiety—the expectation that my efforts, however enthusiastic, will be judged by a punishing professional standard. In all seriousness, the rule of law is a broad and important subject, and I confess I am a serious student who continues to learn from conferences such as this one. Of course, my perspective on the topic cannot help but be shaped by my long experience as a state and federal judge. My thirty-seven years on the bench have only reinforced my appreciation for our Founders’ genius.
But it is wise to remember that the structures that have allowed the United States to become the longest-surviving democracy in the history of civilization are a result of hard struggle and compromise as well as genius. Our Founders’ experiences with colonialism, remote monarchies, and personal ambitions gave them a clear-eyed appreciation for human nature. While those first Americans were committed to setting their new nation on a democratic course, they knew that a democratic majority could be every bit as tyrannical as the despots they had recently overthrown. So they hammered out our Bill of Rights. This was done to guarantee the most basic freedoms to even unpopular minorities. It is our great good fortune that they did not stop there. They understood that a Bill of Rights would be meaningless without a mechanism for enforcement. They crafted what they intended to be a self-correcting structure composed of three separate branches: executive, legislative, and judicial. Each of those branches was granted a certain authority to check and balance the others. The Founders were determined that no individual or group would be granted enough power to bend the system to their particular will.
James Madison wrote that “accumulation of all powers, legislative, executive, and judiciary, in the same hands … whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Framers intended the Constitution to be of a limited nature; that is, only certain, defined authority was delegated to each of the three branches of government. For example, the legislature was specifically precluded from passing bills of attainder or ex post facto laws. Constitutional constraints on the legislative and executive branches made an independent judiciary essential because no other body could intervene if the political branches overstepped their constitutional bounds?
Alexander Hamilton wrote in the Federalist Papers that the complete independence of the courts was peculiarly essential to a limited Constitution as limitations could “be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. He concluded, “there is no liberty if the power of judging be not separated from the legislative and executive powers.'”
A separation of powers, then, was foreseen—even before Marbury v. Madison—as essential to protecting a new democracy from being given over to an elective tyranny. I think the Founders’ foresight is demonstrated by the fact that the U.S. Bill of Rights is hardly unique. My good friend and colleague, Judge Stephen Friot, has spent considerable time studying Russia and its judicial system as it is currently developing and as it existed under the Soviet Union. His truly outstanding analysis comparing our two legal systems will soon be translated into Russian. He reminded me of something that I learned in taking a comparative-law course at Harvard back in 1962-63: the Soviets themselves had an elaborate bill of rights with far more comprehensive guarantees than our own. That Soviet Bill of Rights, however, did not prevent some of the most brutal suppression of human rights our modem era has witnessed. Under the Soviets, the judiciary and the bar served as little more than tools of the state. The absence of an independent judicial system made a mockery of the rule of law. As essential as judicial independence is to the rule of law, its supports are surprisingly fragile. To borrow the words of Alexander Hamilton again, the executive branch “holds the sword of the community,” and the legislature both “commands the purse [and] prescribes the rules by which the duties and rights of every citizen are to be regulated.” By contrast, the courts have “no influence over either the sword or the purse.” They “have neither force nor will but merely judgment; and [even that judgment is] ultimately depend[ent] upon the aid of the executive” branch for its enforcement. Thus, the judicial branch is frequently referred to as the least dangerous branch.” So, despite its importance in ensuring our constitutional system of government, the independence of the judiciary has been preserved mainly by the respect accorded to it by the executive and legislative branches and, most importantly, by the public.
Out of a profound respect for our Constitution, past Presidents have generally checked their own power. They have routinely enforced judicial decisions with which they personally disagreed. Legislators, too, refrained from employing their budgetary powers to cripple the judicial branch. The courts reciprocated by demonstrating considerable deference to the President and by overturning duly passed legislation only sparingly. It seems no branch of government relished the prospect of the constitutional crisis that would ensue if any branch pressed its prerogatives to their outer limits. As Professor Peter Shane of Ohio State University Moritz College of Law phrases it, “where powers are allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion of the others, [some degree of self-restraint] is imperative.”‘
Over the course of our history, there have been moments when self-restraint fell into perilously short supply. Think back to the Great Depression and Franklin D. Roosevelt’s landslide 1936 re-election. Roosevelt was frustrated by a conservative Supreme Court that had begun to thwart his popular New Deal programs. Six of the Court’s Justices were more than seventy years old and gave no hint of retirement.
In 1937, Roosevelt informed his, cabinet that he intended to ask Congress for the power to appoint one additional judge to the federal judiciary (including the Supreme Court) for every Justice who had reached the age of seventy but declined to retire. While his ostensible purpose was to increase the efficiency of the judiciary, it was clear that Roosevelt was targeting six of the nine Supreme Court Justices who had challenged his domestic programs. Roosevelt’s plan met strong opposition. After the Supreme Court upheld two of the President’s key pieces of legislation, much of the air was let out of the Court-packing plan.” The measure was allowed to die in committee where it was remanded by a 70-20 Senate vote.”
Challenges to the independence of the judiciary are not relegated to our storied past. In the last few years, the courts have experienced a series of broadsides.
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It is recognized, and pretty well conceded, that during these last seven years we have witnessed the greatest power grab by the executive branch in this nation’s history. The administration embraces the “unitary executive” theory, and it further claims that during a war that has never been declared and whose duration has never been defined, the President can determine how the law will be interpreted by issuing a “signing statement” when he signs legislation into law. The administration’s extensive use of executive privilege buttresses clear-cut indications that the prosecutorial arm of the Justice Department has been politicized at a level never before attempted. While this has been happening, the legislative branch has been largely complicit or unable to prevent it.
A few judges have had the courage to slow or temporarily stop the steam roller, as in the Schiavo and Guantanamo-detainee cases, but they too have faced tough sledding. For instance, in the landmark case of Hamdan v. Rumsfeld, the Supreme Court held that the military commissions created by President Bush to try Guantanamo detainees failed to comply with the Uniform Code of Military Justice and the Geneva Conventions. The Court also determined that a military conflict does not give the President the authority to ignore the law.
For his brilliant work in the case, Hamdan’s Navy JAG lawyer, Lieutenant Commander Charles Swift, was passed over for promotion and forced to retire under the military’s “up-or-out” promotion system. Swift, who learned he was being passed over just two weeks after the Supreme Court ruled in Hamdan’s favor, said that “[t]he question is not, Will we survive [G]uantanamo, because of course we will survive Guantanamo. The question is: Will we survive Guantanamo as a great nation?””
Less dramatic examples of lawyers defending the rule of law may be found all around us. …
I know it sometimes seems that the public values lawyers only slightly more than West Nile-disease-bearing mosquitoes, but despite all the jokes lawyers continue to wield enormous influence. As Jerry Seinfeld quipped,
a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.
In moments of crisis, people want to hear from the folks who have read the rules and will stand up for the process. That is why it is important for lawyers to speak out in favor of the rule of law even when it is uncomfortable.
When a fairly small group of lawyers began pressing the rights of detainees held at Guantanamo Bay, they met indifference, if not hostility, from the public and out-and-out aggression from some pretty powerful officials. In an interview with a D.C. radio station, Charles D. Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, expressed his frustration that lawyers at many of the nation’s top firms were volunteering to represent (pro bono) detainees held, most without any charges having been filed against them, at Guantanamo. He listed more than a dozen firms by name and suggested that the corporate clients of those firms should take their business elsewhere. Asked about Stimson’s remarks, the White House declined to comment.
The reaction from the bar was swift. ABA President Karen Mathis said the following: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work—and doing it on a volunteer basis-is deeply offensive to members of the legal profession, and we hope to all Americans.”
Neal Sonnett, the head of the American Judicature Society, labeled Mr. Stimson’s remarks as “‘shameful and irresponsible,” and he concluded that Stimson had made a “‘blatant attempt to intimidate lawyers and their firms who are rendering important public service in upholding the rule of law and our democratic ideals. “‘ The blistering public response forced Stimson to apologize; he resigned shortly thereafter.
Our attempt to remove terrorism suspects from judicial process and to shroud their treatment in secrecy will likely haunt us for generations. Just last week, as a result of a Freedom of Information Act request by the American Civil Liberties Union, we were treated to more of the astounding legal reasoning of John Yoo and the Office of Legal Counsel (“OLC”). As you may recall, John Yoo was the Deputy Assistant Attorney General whose analysis played a starring role in the so-called “Bybee Torture Memo,” which was named for Jay Bybee who, as Assistant Attorney General, headed up the OLC in 2002. That memo addressed the limits imposed by a federal statute implementing the Convention Against Torture. The memo famously construed torture so narrowly as to include only acts producing such pain as would “be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Apparently the OLC found even that absurd definition of torture overly confining and thus concluded that the statute would raise serious constitutional concerns were it construed to apply to any interrogation ordered by the President pursuant to his authority as Commander-in-Chief.
The newly released memo, written in March of 2003 and directed to William J. Haynes II, general counsel of the Department of Defense, spends eighty-one pages explaining that the President has the unilateral authority to ignore statutes and treaties ratified by the United States that prohibit torture. As Georgetown professor of constitutional law Marty Lederman notes, [t]here is nothing like [this memo] in [the United States’] long legal history … . [H]ow often is it that a Department of Justice memo is issued that matter-of-factly argues that the [C]ommander in [C]hief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye—notwithstanding a statute that would prohibit that very conduct?
This line of thought—I hesitate to call it “reasoning”—turns the Constitution upon its head and annuls the system of checks and balances at the Constitution’s heart. According to John Yoo, Jay Bybee, Alberto Gonzales, and Dick Cheney’s current chief of staff and former legal counsel David Addington, in a time of war, even a “war” so amorphous and ill-defined as the “war on terror,” the Constitution and its carefully wrought shields against tyranny simply cease to apply.
While the torture memos and the lawlessness they helped institute have now been repudiated, it is important to consider how they came to be and to appreciate just how radically un-American they are. As one of my favorite constitutional scholars, the brilliant Joseph Thai of the University of Oklahoma’s College of Law recently remarked to me, “to read the inherent powers of the President under Article II to nullify the rest of the Constitution would be to read it as a `suicide pact. “‘ Professor Thai recalls the words of Justice John Paul Stevens for whom he served as a law clerk in Justice Stevens’ dissenting opinion in Florida v. Meyers ; Justice Stevens wrote, “we must not forget that a central purpose of our written Constitution, and more specifically of its unique creation of a life-tenured federal judiciary, was to ensure that certain rights are firmly secured against possible oppression by the Federal or State Governments.”
I apologize for consuming so much of your time and attention this afternoon, but a captive audience of lawyers is more than I can resist. I am convinced that it is courageous lawyers like you all who will perform the brunt of the work that puts us back on the path to the rule of law. Independent and zealous legal counsel can go a long way toward correcting a result when other safeguards appear to have failed—and make no mistake, in our system, the appearance of failure can be as damaging as an actual breakdown.
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If I am overly sensitive to the threats facing our justice system, it is because I have come to hold it in such high regard. My years of experience, both as a lawyer and a judge, have convinced me that the courts’ use of the adversarial process, coupled with the jury system, provides as level a playing field as any mechanism so far devised. I share in the sentiment of former dean Kathleen Sullivan of Stanford who said, “[w]hat drives me is the conviction that the courts are the only place where people who are politically powerless can get a fair shake …. You can never underestimate how important it is to have lawyers and courts to defend people whom lots of people don’t like. “‘ She concluded: “`[i]f we didn’t have lawyers … we’d have to invent them.”‘”
In their excellent new book The Lawyer Myth, Rennard Stickland of the University of Oregon School of Law and Frank T. Read of South Texas College of Law identify lawyers as the ‘foot soldiers of our Constitution. “‘ I agree. And I commend you soldiers on the skirmishes you have won. You all know as well as I do that in our hopeful but imperfect democracy, the war for the rule of law will never be finished. But with each successful battle, you advance the fight for future generations. You are the foot soldiers who will prevent the John Yoos, the David Addingtons, the Jay Bybees, and the Alberto Gonzaleses from making the playing field completely unbalanced. I am gratified to have such able allies as we continue toward our worthy goal. Thank you all for having me.