Essay: Ms. Lin Miaoke, Judge Amy C. Barrett & Horse Sense

An interesting post by Frank Hong commentator on legal issues and affairs at https://cookdingorg.wpcomstaging.com/

To preface the essay he writes in an email to the ChinaLaw Listserv..

Judge Barrett as a nominee of Supreme Court justice is different from rank and file judges at the lower level in that she is closer to the ideal type of Chinese scholar-official. (Adjudication was part of Chinese scholar-officials’ job duties in the old days.) Against the backdrop of the tension between Originalism for which Barrett and her mentor the late Justice Scalia are known and the overly political inclinations in Bush vs. Gore and potential cases arising out of the upcoming election, would-be justice Barrett may be even comparable to the modern Chinese political-legal officials (at the highest level, functionally speaking). These are wild ideas, to say the least. But they are not raised in a frivolous manner. And they are not meaningfully developed yet.

He poses an interesting question. If the US continues to follow the Trump path will Supreme Court judges increasingly become quasi government functaries moving them closer to a Chinese view of the judiciary’s function in society.

All the more interesting considering the current narrative that the great powers of the USA & China are to be at odds for the forseeable future each seen by the other as “the other ” yet both being increasingly the same.

Dare we mention Orwell, yet again in 2020?

Professor Carl Becker (1873-1945) known for coining Cornell’s trademark motto “freedom with responsibility” had a quote posted on the door of his office: “Hui gives me no assistance. There is nothing that I say which does not please him.” Hui was Yan Hui, the best student of Confucius. Yet the Master was somewhat annoyed by the fact that Hui had never doubted what he taught, hence “Hui gives me no assistance.”

The freedom of speech under the U. S. constitution arguably fosters the same kind of right to doubt promoted by Confucius. But the right to freedom of speech, phrased in a double negative — “no law …abridging the freedom of speech, or of the press” — is designed to be free of substance. In fact, as a formal right, the freedom of speech is more vulnerable to external influences or manipulations such as underlying social conditions and organized religions. Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This powerful injunction is no guarantee of a society free from overwhelming influence from religious or other secular dogmas. In contrast, the right to doubt, not exercised as a judicially enforced legal or constitutional right, has been carried on in Chinese intellectual life for at least twenty centuries mainly through education and culture.

The story of Professor Carl Becker came from Dr. Hu Shih’s personal recollection. [1] Dr. Hu recited this anecdote at the time when China on both sides of the Taiwan strait was under the draconic rule of strong man. Dr. Hu had the good sense to escape the persecution by triumphant Mao’s followers only to live under the martial law imposed by Chiang Kai-shek. Yet he was upbeat that the right to doubt lived on in the Chinese intellectual life. Dr. Hu did not think of the significance of this right to doubt from legal perspective. Rather he thought in terms of civilizations.

Taking on the challenge posed by Professor Kenneth Scott Latourette, “Why is it that, of the advanced cultures upon which the West has impinged in the past four hundred and fifty years, that of China has suffered the greatest disintegration?”, Dr. Hu pointed at “the spirit of doubt, which has ingrained itself in the Chinese mentality ever since the days of Laozi and Confucius.” [2] This self-critical examination of China’s own ideas and institutions is the prerequisite without which no “profound and sweeping changes” are possible. Confucianism has survived the incredibly seductive influence of Buddhism, the brutal invasions by the northern barbarians and the blood-soaked communism craze in the 20th century.

In the long life of Confucianism, there has been no shortage of highly sophisticated textualists who fought fierce intellectual battles even paying the ultimate price of life or liberty. The Confucian scholars in the 17th century “lamented the fact that 500 years of rational philosophy could not save the country from the fate of destruction by famine and banditry and final subjugation by a barbarian race.” [3] While the nation withered and the people suffered, these high-minded scholar-officials spent another 300 years perfecting a very methodical and evidence-based philological approach to ancient texts until the dawn of modernity. As Dr. Hu noted, no scared scripts of Confucianism have escaped critical scrutiny. Even more remarkably, this critical enterprise had taken place in a unified empire with no place for asylum or anything remotely close to the protection of the First Amendment. For the most part, the textualist approach to uncovering the true meaning of Confucian cannons was no empty talk as it was intended to guide governance and policy-making for real life issues.

The multi-pronged tests, the various standards of review articulated by the Supreme Court that keep law students up in the night look rather simplistic in comparison with debates over Confucian cannons backed by philology studies and archelogy discoveries.

For the late Supreme Court Justice Antonin Scalia, the Constitution is immune from doubt. Its public meaning as intended by the Framers at the time of founding must be followed to the extent it is discoverable. The deviations from the Constitution such as paper currency, administrative state or Brown vs. Board of Education are not the “profound and sweeping changes” to be embraced. Rather they are errors to be tolerated as they are so “woven into the fabric” of the social and political reality that any judicial correction would wreak havoc.

Presumably, not all past deviations from the Constitution is so “baked” into the reality. Roe vs. Wade ushered in the constitutional right to abortion in 1973 only to see that the current reality on the ground is actually killing the abortion right by one thousand cuts. That is, 90% of counties in America have no abortion providers. State legislatures have kept passing laws to restrict access to abortion providers. Professor Joan C. Williams suggests that the defeat of Roe vs. Wade is already accomplished. Yet for the conservatives, the death by a thousand cuts is not done until it is so proclaimed by the highest court. There is a kick in the very act of pronouncing the death of Roe vs. Wade that the conservatives must enjoy. Lacking actual threat on the ground is not enough. In China, there is no actual possibility of the western style judicial independence eve if one tries hard, yet top judges must regularly proclaim no such independence is to be allowed. This is like oath-taking in the public, the significance of which is symbolic, no more and no less.

Although Scalia’s Originalism is intellectually feeble and politically scary to the progressives, it has grown into a powerful force. Here enters Judge Amy Coney Barrett who is propelled to become the intellectual successor of Scalia on the Supreme Court and is expected to lend her hands (no pun intended) in finishing off the Affordable Care Act and Roe vs. Wade. Judge Barrett has never openly indicated her willingness to overturn Roe vs. Wade. Yet her published papers reveal a clear logic and strategy for so doing when the right moment comes. Judge Barrett sought to assuage the fear of the Originalism by pointing at the rules and procedures that kept the agenda under control so that not many Super Precedents will be presented for the Originalists to overturn. [4] The flipside of this message is that when the right target came up through the “agenda-control” mechanism, the Originalists would be in a position to launch a precision strike at the “erroneous” precedent so as to be faithful to the Constitution as they understand. In no subtle terms, Judge Barrett pointed out that the social and political controversy over Roe vs. Wade has never abated in these years. [5] This is the code word for saying that the right to abortion has not been woven into the social fabric. Judge Barrett’s publications indicate that she has so masterfully commanded the rhetoric, the technical arguments and the tactics of the Originalism that her nomination by the Trump administration is well deserved.

Judge Barrett’s perfect resume reflects a driven and smart mother of seven of extraordinary energy. Yet her meteoric ascendence as an “insider” of the privileged American constitutional interpretative community is only matched by the maddening, self-inflicted decline of American institutions in the same three decades. For the most part, her scholarship has focused on defending the Originalism, and her limited appellate court stint, as a result of “agenda control” process which she has been fond of referencing, has only given her a very limited diet of doctrinal exercises.

Not surprisingly, Judge Barrett has not tried a case. In fact, during her career, trials, even criminal trials have been greatly reduced as result of various institutional forces. [6] American courts have steadily become another kind of bureaucracy even as the institution of Federal civil servants aged and shrunk in relative terms largely as result of the Reagan ideology of gutting the governmental capacity. American courts, ostensibly tasked to protect rights, have grown in complexity while riding along, if not facilitating the social and political tide that has locked so many in jails and out of affordable housings. Justice Barrett would be ill-equipped to confront such a crisis in reality. In fact, she is so intellectually malnourished that she probably does not see the crisis.

Notwithstanding the pathologies predictably growing out of bureaucracy, a modern nation cannot function without a competent bureaucracy. While catching up fast, the Chinese judiciary is still underdeveloped in comparison with American counterpart. Yet such a deficit is more than compensated by a highly sophisticated system of civil servants which collectively aims to have the “Horse Sense” and the “Whole View” as advocated by Karl Llewellyn (1893-1962) in getting their jobs done. A well-known example was that a Chinese provincial governor took the official GDP data with a grain of salt by cross checking them with other statistics on railway cargo volume, electricity consumption and loan disbursements in order to get a better grasp of the “working situation”. [7]

Llewellyn who was so open minded in approaching law in society had the intellectual capacity to study “law-jobs” in the Cheyenne tribe. He sought to understand the “ways” of how disputes arose and got settled. He would have disapproved many China law programs in today’s American law schools which seek to measure China’s law and development in American frames.

Llewellyn would have admired Confucius’ role as an educator. “… one of the most misleading claims that has ever been put forward for law’s contribution to civilization is the notion that it is law from which the basic order flows. The basic order grows, I repeat, not from law, but (at least every generation) from the process of education. With that process law may have much to do. But the much is not too much. … Law plays mostly upon the fringe.” [8]

In acknowledging Scalia’s impact on the Supreme Court, Justice Elena Kagan declared “we are all textualists now.” She did so with chuckles. And she prepared her audience by first reciting a “classic phrase”, “we are all Realists now”Llewellyn the Realist par excellence would have turned in his grave. Llewellyn envisioned the case law teaching to produce legal professionals capable of reasoning that “can recognize in the nature of man and of the life conditions of the time and place; it is thus not eternal nor changeless nor everywhere the same, but is indwelling in the very circumstances of life. The highest task of law-giving consists in uncovering and implementing this immanent law.” [9] Is this too ideal to be realized in life?

“In some ways, this is a very oriental approach. [One example] would be a Chinese official, whose traditional education instilled an understanding of men and government. He acquired this understanding primarily by studying how the Duke of Chou and similar worthies handled problems in the fifth century B.C. and before. He would then not find it difficult to cope with floods, bandits, and lazy monarchs.” [10] This is not a self-congratulatory propaganda from China. This was Professor William Jones’ scholarly reflection after years of teaching Elements, a course outgrown from Llewellyn’s similar course at the University of Chicago School of Law in the 1950s. All these wise counsel sounds quaint to today’s American law students.

Yet the rational tradition of scholar-officials’ problem-solving lives on in China even as the western science and legal reasoning are imported in earnest to get the massive modern Chinese society going. The still modest yet highly impressive advancement in China during Judge Barrett’s life time is largely explained by the battle-hardened spirit of doubt, the unyielding efforts to grasp “working situation” with a forward-looking mentality, strong commitment to science and emphasis on education at all levels. On all these counts, the system that produced Judge Barrett as an excellent candidate for the Supreme Court seat has failed. Scalia, a self-styled “faint-hearted Originalist” is surely not “a nut”, [11] yet his outsized influence is one of the forces moving America in the direction of becoming a nut nation.

Judge Barrett is nominated because her records satisfy the ideological preference of the social and political force that rally behind the nutty Originalism for certain political objectives. Lin Miaoke, who at age 9 was selected to be the singer of “Ode to the motherland” at the opening ceremony of the Beijing Olympics. As it turned out, Lin did only lip singing. Another little girl did the actual singing behind the scene. It was a controversy if not a scandal at the time when this was uncovered by the press. Apparently, Lin was chosen because her good looking met the aesthetic preference of most Chinese viewers. The fact she could not sing well was neatly engineered away. Judge Barrett’s resume looks perfect, and she could masterfully sing the Originalism. Facing Senator Feinstein’s charge that the Catholic “dogmas live loudly within [her]”, she pledged to separate personal faith from the adjudication. The nomination of Judge Barrett, much like choosing Lin Miaoke, tells more about the taste of the intended audience than the performer herself.

In her nomination announcement event at the Rose Garden, Judge Barrett, herself recovered from Covid-19, without a mask, played her part by graciously standing next to President Trump, presumably already infected with Covid-19 — not a moment of the rule of law’s triumph, but a glaring image of failure in education and supreme deviation from common sense.

[1] Hu Shih, The Right to Doubt in Ancient Chinese Thought, Philosophy East and West. 295–300, Jan., 1963. Vol. 12. No. 4. (The paper was initially read in a conference in 1954. It was not published until after Dr. Hu’s death.)

[2] Id.

[3] Hu Shih, The Civilizations of the East and the West, in Charles A. Beard, ed., Whither Mankind: A Panorama of Modern Civilization, at 33, (New York: Longmans, Green and Co., 1928)

[4] Amy C. Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, at 1929-1931, (2017)

[5] Barrett, supra note 4, at 1932, footnote 52, (2017)

[6] Robert P. Burns, Is Our Legal Order Just Another Bureaucracy, 48 LOY. U. CHI. L.J. 413 (2016); see also Owen M. Fiss, The Bureaucratization of the Judiciary, Y. L. Journal, Jul., 1983, Vol. 92, No. 8.

[7] “Working Situation” is a key concept for Karl Llewellyn, see The Bramble BushOur Law and Its Study, (Oceana Publications Inc.: New York), at 16 (1960). Llewellyn the realist does not stop at predicting what the courts do. Rather he wants lawyers and judges to command “the full knowledge of the facts of the life of the community.” Id. at 16.

[8] Id., at 128-129.

[9] Karl Llewellyn, The Common Law Tradition: Deciding Appels, (Little Brown, 1960) at 122.

[10] William C. Jones, Book Review of “The Theory and Craft of American Law – Elements” by Soia Mentschikoff and Irwin P. Stotzky, 37 U. Miami L. Rev. 867, at 868, (1983)

[11] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, at 864 (1989); Barrett, supra note 4, at 1931, (2017)

10/07/2020

Shanghai

Source: https://cookdingorg.wpcomstaging.com/2020/10/07/ms-lin-miaoke-judge-amy-c-barrett-horse-sense/

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