I recently suggested that the history of the current administration was more than a collection of discrete data points where legal norms had been disregarded, and that the Rule of Law itself was under attack. For that reason, I said, Congress should rename Law Day, U.S.A. as Rule of Law Day. Congress hasn’t gotten around to passing that legislation yet. But as the days of self-isolation continue with yet more disquieting economic news and ever-rising tolls of the pandemic’s stricken and dead, it is worth continuing the effort to define what it is that makes the country’s current plight so profoundly disturbing.
The heart of the matter runs deeper than adherence to the rule of law, although the causes of our discontent are related to that principle.
Both as a practicing lawyer and as a law teacher, I have often found it instructive to ask whether a particular institution, practice, doctrine, or set of facts contributes to public confidence in the administration of justice. The words are familiar, and they are easily invoked, although I don’t recall hearing them when I studied law many years ago.
My attention was first called to the concept of public confidence by a wise friend, a retired Navy lawyer who now works at the Department of Justice. I must have been bending his ear over one of our periodic lunches at the National Gallery about some case in which I was searching for a way to move the law forward when he very correctly explained that the issue was simple: It had to do with fostering “public confidence in the administration of justice.”
Who was “the public” and what was “confidence” all about? He didn’t say, but the idea was obviously sound even if you couldn’t quite put your hands around it, much less measure it. It is, in this way, like Justice Potter Stewart’s I-know-it-when-I-see-it approach to defining hard-core pornography in Jacobellis v. Ohio.
Pretty much everyone knows what it takes to foster public confidence in the administration of justice: independent and impartial judges, public trials, settled rules of evidence and procedure, appellate review, confrontation of witnesses, a right to conflict-free counsel and the like.
But surveying the current political, social, economic and health wreckage, should we not be at least equally focused on fostering public confidence in the administration of government in general?
In a democracy — a government of the people, by the people, and for the people, as Lincoln famously put it at Gettysburg — that would seem to be a supremely important objective. What is it that contributes to public confidence, in this instance? Here is a first draft, in no particular order:
- That the government — here meaning the executive branch — obeys the law, whether it is the Constitution, or acts of Congress, or treaties to which the country is a party, encourages others to do so and punishes those who do not;
- That the government exercises “care” in administering the law, meaning that it is effective, intelligent (drawing as necessary on those with relevant expertise), proactive rather than reactive, sets appropriate priorities and does not squander public funds or resources;
- That the government strikes a wise balance between steadiness and agility in the face of changing circumstances and accepts responsibility when it comes up short (New York’s Mayor Fiorello H. LaGuardia once said, “When I make a mistake, it’s a beaut” — and people loved him for it);
- That the government is as transparent as possible concerning its actions and policies;
- That government functions are performed by permanent rather than acting officials who are selected for their merit and senatorially confirmed where required by law, and whose only loyalty is to the law of the land, rather than partisan, family, or business interests;
- That government functions are performed under the active superintendence of a chief executive who views his high office as a full-time responsibility;
- That the government protects the country’s security and territorial integrity and the health and safety of the public;
- That the government honors both the separation of powers and the federal system established by the Constitution, and in word and deed respects the coordinate branches and their members;
- That the government actively contributes to civility in public discourse and respect for the dignity and equality of all inhabitants.
An administration that can look down this list and say, truthfully, that it has honored these goals is one that will have fostered public confidence. Such an administration will have earned the thanks of the people.
An administration that cannot fairly claim to have honored these goals has failed, and deserves to be turned out of office.
Eugene R. Fidell teaches at Yale Law School and is of counsel at the Washington, D.C. law firm Feldesman Tucker Leifer Fidell LLP. He edits the blog Global Military Justice Reform, globalmjreform.blogspot.com, and is on the steering committee of Lawyers Defending American Democracy.