Does Book by Judge or Justice Diminish Judiciary
The New York Times
January 29, 2006
Essay
Judicial Exposure
By JEFFREY ROSEN
During his Supreme Court confirmation hearings, Judge Samuel Alito talked frequently about his father, an Italian immigrant. "My father was brought to this country as an infant," Alito declared. "He grew up in poverty." Offering up homey autobiographical anecdotes to build political support is a familiar strategy among nominees. But now personal exposure is becoming a strategy for judges to connect to the public even after they are confirmed: In 2002, Clarence Thomas received a $1.5 million advance for a memoir, tentatively entitled "From Pin Point to Points After," that promises to describe his rise from obscurity, including his personal impressions of his "emotionally overwhelming" confirmation battle, in which he was accused of sexual harassment by Anita Hill. And Sandra Day O'Connor recently appeared on "Good Morning America" to promote "Chico," her second book about her childhood on the Lazy B Ranch.
In an unbuttoned, confessional age, the judiciary has remained the last institution of American government to resist the public's relentless demands for personal exposure. But the norms about what's appropriate for judges to reveal about themselves are in the middle of a sea change. Before the gossipy anonymous blog Underneath Their Robes (which insists that judges should be treated as "legal celebrities") temporarily shut down last November, Judge Alex Kozinski wrote the site a playful letter nominating himself as a "judicial hottie" while Judge Richard A. Posner - one of the first federal judges to start his own blog - sent giddy fan e-mail messages.
Defenders of the new judicial openness say that the more the public knows about judges' political views and personal habits, the better informed we will be about the basis for their decisions. But it remains to be seen whether judges, by revealing too much about themselves in books and blogs, will squander the sense of impersonal respect on which their legitimacy depends. The stakes are particularly high for Supreme Court justices. Overly revealing memoirs, like that of William O. Douglas, may expose an embarrassing gap between the informal, straight-shooting image the author means to present and the partisan crank the public perceives. Meanwhile, vigorously promoted but bland memoirs like O'Connor's may achieve warmth and fuzziness at the risk of trivializing rather than enhancing the author's legacy.
Judicial memoirs themselves are nothing new. John Marshall, the nation's fourth chief justice, wrote an endearingly brief autobiographical sketch (1827) at the request of his friend Justice Joseph Story that managed to combine candor with his characteristic modesty. ("The events of my life are too unimportant . . . to render them worth communicating or preserving," he began.) A handful of other 19th-century justices (Roger B. Taney, Samuel F. Miller) also wrote autobiographical fragments for family and friends. Most followed Marshall's example: a few chaste details about favorite teachers and early military and legal experience, combined with a discreet silence about the work of the court itself.
It wasn't until the 20th century that justices began to explain and justify themselves to a broader public. Chief Justice Charles Evan Hughes's "Autobiographical Notes" (1973), published 25 years after his death, emphasized that the court had changed its mind about upholding the New Deal before, not after, Roosevelt announced his court-packing plan. Chief Justice Earl Warren's memoir, published three years after his death in 1974, expressed deep regret for his support of the internment of Japanese-Americans during World War II and lambasted President Dwight D. Eisenhower for failing to adequately support the Court's decision in Brown v. Board of Education.
But the norms for judicial memoirs were shattered by Douglas's two-part autobiography, "Go East, Young Man" (1974) and "The Court Years" (1980). From his boastful opening sentences ("While I have been blessed with a photographic mind. . . .") to his concluding screed against President Nixon ("This attitude toward enemies . . . marked the essence of Nixon's Mein Kampf"), Douglas offered a combination of political ranting and gossipy score-settling that still leaves readers slack-jawed. As his biographer, Bruce Allen Murphy, argued recently in "Wild Bill" (2003), many of Douglas's stories were made up, perhaps because his insatiable political ambition led him to write what were essentially campaign autobiographies for the presidential bid that never materialized. Douglas claimed to have had polio as a child, for example; in fact, Murphy writes, he had intestinal colic. And he claimed to have graduated second in his law school class, when, at best, he was fifth. Published the year he died, Douglas's second volume is a cautionary tale in self-absorbed exhibitionism, and it signaled the beginning of the decline in his reputation.
The next justice to write a memoir for a broad audience was another politically ambitious Westerner, Sandra Day O'Connor. But while Douglas was entertainingly indiscreet, O'Connor's "Lazy B: Growing Up on a Cattle Ranch in the American Southwest" (2002), written with her brother H. Alan Day, was guarded to the point of banality. The carefully rehearsed anecdotes were sometimes charming (her Roosevelt-hating father enjoyed discomfiting O'Connor's fiancé, John, by offering him fried calves' testicles). But "Lazy B" - and its successor "Chico," which is written for children - offered no more insight into her jurisprudence than "The Majesty of the Law" (2003), her bland collection of speeches and law review articles.
O'Connor's folksy reminiscences may give some readers the illusion of intimacy and familiarity. But they also reinforce the impression that she is more interested in courting the approval of the moderate majority than in outlining a coherent judicial philosophy. On "Good Morning, America," O'Connor made it clear that questions about her judicial opinions were off-limits; instead, she wanted to talk about her favorite childhood horse. The result was just another one of those talk-show interviews in which politicians try to deflect hard questions by brandishing their personal authenticity, or celebrities insist on talking about their children. The qualities that make for successful celebrities include ubiquity, informality, superficiality and the illusion of emotional accessibility. None of these are judicial virtues.
In writing his memoir, Clarence Thomas faces a different risk. Thomas is silent on the bench but emotionally candid in his autobiographical speeches to African-American students, in which he identifies openly with their struggles and offers his own experiences as an inspirational tale. Perhaps he will vindicate the hopes of his publishers by writing a psychologically revealing memoir about his confirmation ordeal. (The silent Marx Brother, after all, produced one of the greatest showbiz autobiographies of all time, "Harpo Speaks!") But it's just as likely that exercises in personal revelation will make him an even more polarizing figure - particularly if he embraces conservative victimology. According to The Times, he told editors that the book would be read on the air by his friend Rush Limbaugh but that he would not appear on the network morning shows, which might attack him. Promoted by conservative commentators to conservative readers, Thomas's memoir may make it even harder for him, in his judicial opinions, to disappoint his base. And like Douglas, Thomas may inadvertently harm his judicial reputation among moderates (which is, at the moment, unfairly underrated) by revealing more than he intends.
"Judges wear black robes because it doesn't matter who they are as individuals," John Roberts said during his confirmation hearings. "That's not going to shape their decision." Few people today, of course, believe that judges' personal experiences have no influence on their judicial decisions. But taken as a warning, Roberts's statement was prudent and wise. Too much revelation may undermine the public's respect for judges as apolitical authorities. And judicial celebrity can backfire: as any celebrity knows, those who live by publicity have to avoid overexposure, which can lead to the worst fate of all - oblivion.
Jeffrey Rosen's new book, "The Most Democratic Branch: How the Courts Serve America," will be published by Oxford University Press in the spring.
* Copyright 2006The New York Times Company
January 29, 2006
Essay
Judicial Exposure
By JEFFREY ROSEN
During his Supreme Court confirmation hearings, Judge Samuel Alito talked frequently about his father, an Italian immigrant. "My father was brought to this country as an infant," Alito declared. "He grew up in poverty." Offering up homey autobiographical anecdotes to build political support is a familiar strategy among nominees. But now personal exposure is becoming a strategy for judges to connect to the public even after they are confirmed: In 2002, Clarence Thomas received a $1.5 million advance for a memoir, tentatively entitled "From Pin Point to Points After," that promises to describe his rise from obscurity, including his personal impressions of his "emotionally overwhelming" confirmation battle, in which he was accused of sexual harassment by Anita Hill. And Sandra Day O'Connor recently appeared on "Good Morning America" to promote "Chico," her second book about her childhood on the Lazy B Ranch.
In an unbuttoned, confessional age, the judiciary has remained the last institution of American government to resist the public's relentless demands for personal exposure. But the norms about what's appropriate for judges to reveal about themselves are in the middle of a sea change. Before the gossipy anonymous blog Underneath Their Robes (which insists that judges should be treated as "legal celebrities") temporarily shut down last November, Judge Alex Kozinski wrote the site a playful letter nominating himself as a "judicial hottie" while Judge Richard A. Posner - one of the first federal judges to start his own blog - sent giddy fan e-mail messages.
Defenders of the new judicial openness say that the more the public knows about judges' political views and personal habits, the better informed we will be about the basis for their decisions. But it remains to be seen whether judges, by revealing too much about themselves in books and blogs, will squander the sense of impersonal respect on which their legitimacy depends. The stakes are particularly high for Supreme Court justices. Overly revealing memoirs, like that of William O. Douglas, may expose an embarrassing gap between the informal, straight-shooting image the author means to present and the partisan crank the public perceives. Meanwhile, vigorously promoted but bland memoirs like O'Connor's may achieve warmth and fuzziness at the risk of trivializing rather than enhancing the author's legacy.
Judicial memoirs themselves are nothing new. John Marshall, the nation's fourth chief justice, wrote an endearingly brief autobiographical sketch (1827) at the request of his friend Justice Joseph Story that managed to combine candor with his characteristic modesty. ("The events of my life are too unimportant . . . to render them worth communicating or preserving," he began.) A handful of other 19th-century justices (Roger B. Taney, Samuel F. Miller) also wrote autobiographical fragments for family and friends. Most followed Marshall's example: a few chaste details about favorite teachers and early military and legal experience, combined with a discreet silence about the work of the court itself.
It wasn't until the 20th century that justices began to explain and justify themselves to a broader public. Chief Justice Charles Evan Hughes's "Autobiographical Notes" (1973), published 25 years after his death, emphasized that the court had changed its mind about upholding the New Deal before, not after, Roosevelt announced his court-packing plan. Chief Justice Earl Warren's memoir, published three years after his death in 1974, expressed deep regret for his support of the internment of Japanese-Americans during World War II and lambasted President Dwight D. Eisenhower for failing to adequately support the Court's decision in Brown v. Board of Education.
But the norms for judicial memoirs were shattered by Douglas's two-part autobiography, "Go East, Young Man" (1974) and "The Court Years" (1980). From his boastful opening sentences ("While I have been blessed with a photographic mind. . . .") to his concluding screed against President Nixon ("This attitude toward enemies . . . marked the essence of Nixon's Mein Kampf"), Douglas offered a combination of political ranting and gossipy score-settling that still leaves readers slack-jawed. As his biographer, Bruce Allen Murphy, argued recently in "Wild Bill" (2003), many of Douglas's stories were made up, perhaps because his insatiable political ambition led him to write what were essentially campaign autobiographies for the presidential bid that never materialized. Douglas claimed to have had polio as a child, for example; in fact, Murphy writes, he had intestinal colic. And he claimed to have graduated second in his law school class, when, at best, he was fifth. Published the year he died, Douglas's second volume is a cautionary tale in self-absorbed exhibitionism, and it signaled the beginning of the decline in his reputation.
The next justice to write a memoir for a broad audience was another politically ambitious Westerner, Sandra Day O'Connor. But while Douglas was entertainingly indiscreet, O'Connor's "Lazy B: Growing Up on a Cattle Ranch in the American Southwest" (2002), written with her brother H. Alan Day, was guarded to the point of banality. The carefully rehearsed anecdotes were sometimes charming (her Roosevelt-hating father enjoyed discomfiting O'Connor's fiancé, John, by offering him fried calves' testicles). But "Lazy B" - and its successor "Chico," which is written for children - offered no more insight into her jurisprudence than "The Majesty of the Law" (2003), her bland collection of speeches and law review articles.
O'Connor's folksy reminiscences may give some readers the illusion of intimacy and familiarity. But they also reinforce the impression that she is more interested in courting the approval of the moderate majority than in outlining a coherent judicial philosophy. On "Good Morning, America," O'Connor made it clear that questions about her judicial opinions were off-limits; instead, she wanted to talk about her favorite childhood horse. The result was just another one of those talk-show interviews in which politicians try to deflect hard questions by brandishing their personal authenticity, or celebrities insist on talking about their children. The qualities that make for successful celebrities include ubiquity, informality, superficiality and the illusion of emotional accessibility. None of these are judicial virtues.
In writing his memoir, Clarence Thomas faces a different risk. Thomas is silent on the bench but emotionally candid in his autobiographical speeches to African-American students, in which he identifies openly with their struggles and offers his own experiences as an inspirational tale. Perhaps he will vindicate the hopes of his publishers by writing a psychologically revealing memoir about his confirmation ordeal. (The silent Marx Brother, after all, produced one of the greatest showbiz autobiographies of all time, "Harpo Speaks!") But it's just as likely that exercises in personal revelation will make him an even more polarizing figure - particularly if he embraces conservative victimology. According to The Times, he told editors that the book would be read on the air by his friend Rush Limbaugh but that he would not appear on the network morning shows, which might attack him. Promoted by conservative commentators to conservative readers, Thomas's memoir may make it even harder for him, in his judicial opinions, to disappoint his base. And like Douglas, Thomas may inadvertently harm his judicial reputation among moderates (which is, at the moment, unfairly underrated) by revealing more than he intends.
"Judges wear black robes because it doesn't matter who they are as individuals," John Roberts said during his confirmation hearings. "That's not going to shape their decision." Few people today, of course, believe that judges' personal experiences have no influence on their judicial decisions. But taken as a warning, Roberts's statement was prudent and wise. Too much revelation may undermine the public's respect for judges as apolitical authorities. And judicial celebrity can backfire: as any celebrity knows, those who live by publicity have to avoid overexposure, which can lead to the worst fate of all - oblivion.
Jeffrey Rosen's new book, "The Most Democratic Branch: How the Courts Serve America," will be published by Oxford University Press in the spring.
* Copyright 2006The New York Times Company
posted by Professor Segal | 11:52 PM
<< Home