Professor Charles Fried, a former U.S. solicitor general and justice on the Massachusetts Supreme Judicial Court discusses judicial confirmation battles and his recent cases before the Supreme Court. Fried’s book, “Saying What the Law Is: The Constitution in the Supreme Court,” will be published in February.
What are your thoughts on the current judicial confirmation battles in Washington?
Everybody does it. Republicans did it to Clinton, and now the Democrats are doing it to Bush. The Democrats seem to be better at it-more strategic and more dishonest. That’s the only thing one can really stand up and complain about. The rest is politics. The dishonesty comes not from saying what is true, which is, “We would rather have nominees more to our taste, and we’re going to see if we can force you to give us them.” They instead come up with what are completely phony, dishonest reasons, which have the unfortunate effect of defaming the people involved. And, of course, Republicans did some of that too, when Clinton was president.
Do you think the process could be, and should be, reformed?
Can you make the Democrats more honest? I leave that to others to say. Can you do something about the process? Well, there is some suggestion that the filibuster should be tinkered with, so that a minority cannot continuously block what would be the will of the majority. I think that’s a good idea. I don’t think that there’s any real will for doing it because each side treasures their ability to block when they’re in the minority-and everybody is in the minority sometimes. But I think the filibuster itself is an obviously anti-democratic institution and that it should in some way be moderated. It’s all right to let a minority hold things up for a while, but the notion of a diminishing percentage for shutting off debate seems to make sense. After all, [the Senate] is supposed to be a democratic institution. And these dreadful hypocrites say, “We’re exercising advice and consent.” Well, that’s obvious baloney. They are preventing the Senate from being able to exercise advice and consent.
How much do you think judicial nominees should be required to reveal about their views during the confirmation process?
It is an attempt to commit the judge, which is absolutely against the notion of the independence of the judiciary. The practice of Felix Frankfurter and [Antonin] Scalia should be cited as an example of how conscientious people will not do that. Justice [Stephen] Breyer was very shrewd when he had his confirmation hearings. They’d ask him these questions, and he would drown them in words by talking of the considerations on one side, and the considerations on the other side, and the principles involved. And at the end of the day, he wouldn’t have really made a commitment at all.
The function of the questioning is not to find anything out; it’s another piece of dreadful hypocrisy and dishonesty. They know what they’re looking for. They know the answers to those questions. They’re looking for something to trip somebody up with or something that can then be used in debates.
Tell me about the cases you argue before the Supreme Court last year.
The one I argued in February 2003, I argued because the Supreme Court appointed me to argue it.
Does that happen very often?
Sometimes. It was a case of right to counsel. The state of Alabama had lost before its own Supreme Court and had taken cert. The Court granted certiorari because the question was a difficult one and had ramifications all over the country. And, to the Court’s surprise, when the attorney general of Alabama filed his reply brief, he more or less had given away his case. So they didn’t have a case left. They could have simply removed the case from the docket, but I guess they wanted to decide the issue. So they appointed me and told me exactly what to argue.
That must tie your hands a bit.
It was all right; it was not an issue I had any views on. I was happy to be told what to do, and then I did my best. But [HLS Professor William] Stuntz gave me a lot of advice on the case. I argued it and lost five to four. I argued exactly the proposition I’d been assigned to argue. They asked me to argue that in a misdemeanor case you don’t need an attorney [at trial] when there is a conditional sentence. I argued that if they tried to send the defendant to prison at a later stage for violating the conditions, then he needs an attorney. But he doesn’t need an attorney at the first stage. And I persuaded four, but not five, people.
And the second case?
The other case, which I also did pro bono, was to argue that the nationwide IOLTA system [used for funding legal aid attorneys] is an unconstitutional taking. I had argued that position in the Fifth Circuit and won. Then it came up from the Ninth Circuit and the decision went the other way, and I argued the case on the conflict. There were two possibilities, either that the taking of this interest was a per se taking or that it was subject to a balancing rule. I thought that if the Court ruled [it was a per se taking] I had to win, because of something that the court had said in a previous version of the same issue. Well, they said it was a per se taking, but I lost five to four because Justice [Sandra Day] O’Connor, who had agreed with the prior case, switched sides in a way that really would’ve been very hard to explain.
Beyond your own cases, has this Court surprised you much?
I think they have been drifting a little bit towards the center. It has always been very evenly balanced. Justice O’Connor has been drifting towards a more pragmatic center and moving away from things she herself had decided. In the Grutter case, the Michigan affirmative action case, she had to eat some of her own words, and it didn’t seem to bother her a bit. And I bet in this Washington v. Davey case, she’s going to do it again. I think she’s become more and more pragmatic.
Is it common for a justice’s views to change like this?
There are some examples, like Justice [John Paul] Stevens and Justice [Harry] Blackmun, maybe Justice [David] Souter, who for just maybe a year or so were in one position but then after a while, firmly settled into where they just stayed. Somebody moving from a position where they’d been for a long time? Hugo Black comes to mind. He moved rightward in a very distinct way. He became much more conservative. I can’t think of any other examples. I think Justice O’Connor’s quite striking in her drift.
On a more local note, what are your thoughts on the decision to keep the law school in Cambridge?
I’m relieved. I’m relieved in part because it means that for the next 20 years the law school doesn’t have to be totally preoccupied with that and can go about its other projects, which are very exciting and very broad. I think [Dean] Elena [Kagan] would have been doing nothing but Allston if the decision had gone the other way.