A Soul-less Patriot Speaks

Leo Strauss

It seems fitting, now that Chief Justice John Roberts has written what some legal analysts are calling his defining moment, to look at what was written in 2005 at the time of Roberts' confirmation hearing, when he told the Senators on the Judiciary Committee how he valued only, without definition, the "Rule of Law." When chosen for the Supreme Court, Roberts was a darling of the Federalist Society, founded in 1982 at Yale, Harvard and the University of Chicago with initial funding from the Institute for Educational Affairs, a group founded by Irving Kristol and William E. Simon, Gerald Ford's Secretary of the Treasury, during the same years Dick Cheney and Donald Rumsfeld received their first taste of power. This conservative legal society was based upon the neo-fascist principles of Leo Strauss, long-time professor at the Rockefeller-inspired University of Chicago. Strauss, a Zionist who grew up in Germany, studied in the 1930's in Paris and moved to London on Rockefeller Fellowships, before becoming a research fellow at Columbia University in New York. Like Henry Kissinger, he was bought and paid for by the Rockefellers, who control the Federal Reserve Bank of New York.

The Essence of Jurisprudence 

 © 2005 by Linda Minor

  

"Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence." 

Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee

A defining philosophy

What is law?

What is justice?

Even more to the point, what is this “rule of law” which, like a beacon in the night, guides Supreme Court Chief Justice nominee John Glover Roberts, Jr.?

Claiming immunity from any corrupting influences of ideological, moral and philosophical prejudices, as well as independence from an untidy subjectivity derived from moralistic value judgments— sometimes called heart or soul—he promises that he will be a judge who objectively evaluates evidence and omnisciently interprets legislative intent.

Even Senator Arlen Specter, who created out of thin air his “magic bullet” theory (in the Warren Report investigation into the murder of President John Kennedy), was almost struck dumb by Roberts’ facile ability to evade questions designed to reveal his core values as a human being. Specter’s apparent concern that the Supreme Court will continue to invalidate laws passed by Congress on the rationale that they do not meet an undefined “congruence and proportionality test”—a test which, Specter declared, was “plucked … right out of thin air”. Insulted by the Court’s arrogance, Specter inquired whether Roberts believes that the Court, in manufacturing such a test out of whole cloth, in order to strike down duly enacted legislation, is thus engaged of “judicial activism”.

ROBERTS: Well, these questions arise, of course, under, as you know, Section 5 of the Fourteenth Amendment, where the issue is Congress’ power to address violations of the Fourteenth Amendment. And it's an extraordinary grant of power. And the court has always recognized it as such. And their decisions in recent years … which upheld Congress' exercise of authority. The most recent cases, Lane and Hibbs, uphold Congress' exercise of authority to abrogate...

SPECTER: But, Judge Roberts, they uphold it at the pleasure of the court.  Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court.

ROBERTS: Well, and that was Justice Scalia's position in dissent. He had originally...

SPECTER: Do you agree with Scalia?

ROBERTS: Well, again, this is -- the congruent and proportional test...

SPECTER: Do you disagree with Justice Scalia?

ROBERTS: I don't think it's appropriate, in an area... (LAUGHTER) ... and there are cases coming up, as you know, Mr. Chairman. There's a case on the docket right now that considers the congruence and proportionality test.

SPECTER: That's why I'm raising it with you. I'd like to see a sensible interpretation with the court in that case.

ROBERTS: Well, and if I am confirmed and I do have to sit on that case, I would approach that with an open mind and consider the arguments.  I can't give you a commitment here today about how I will approach an issue that is going to be on the docket within a matter of months.

SPECTER: Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country. It comes out of thin air in 1997. And it's used in Lane and Garrett, two 5-4 decisions on identical records on an identical act, and the country and the Congress are supposed to figure out what the court means. So I'm really talking about jurisprudence. [emphasis added] [1]

Senator Specter would likely agree with Black’s Law Dictionary’s definition of jurisprudence as

“that science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in their proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules.”

It is the function of jurisprudence, according to Black’s Dictionary, when two different rules seem equally applicable to a given fact situation, to

“consider the ultimate effect which would be produced if each rule were applied to an indefinite number of similar cases, and to choose that rule which, when so applied, will produce the greatest advantage to the community.”

This definition assumes, of course, that such a thing as a community still exists in the United States.

That word connotes a group of people who share a value system and have control over the direction of their society. Since the Constitution gives the Senate the role of sharing in the president’s appointment of Court judges, one could infer from that role the right to determine whether a nominee’s philosophy would tend to protect the purposes for which the American Constitution was designed. When repeatedly asked about what he values, however, automaton John Roberts invariably gave the same answer: 

“the rule of law.”

Respect for institutions

''He's somebody who has respect for institutions. I think institutions have been important to him in his life, like Harvard, the Catholic Church and the Supreme Court. He's not likely to be anybody to do anything too radical,'' Roberts’ law school roommate, Paul Mogin, told a New York Times reporter for an article that appeared July 21, 2005. 

That characterization partially answers our questions. 

The overriding philosophy of jurisprudence which took over the court during the reign of Chief Justice Earl Warren unquestionably reached out actively in protecting the rights of the individual, as opposed to the goals of an orderly society. From all indications, it appears that Justice Roberts will assist in swinging the pendulum back in favor of institutions in an attempt to re-establish the values Americans claimed defined the nation, before President Eisenhower’s appointment of California Governor Earl Warren led the country down the road to perdition.

Greatest Judge of His Era

Both Paul Mogin and John Roberts clerked under Judge Henry Jacob Friendly, long-term Federal Judge of the Second Circuit Court of Appeals sitting in New York. [2] Their mentor, Judge Friendly, had himself been a protégé of Justice Felix Frankfurter, a man we described in “The Untitled Aristocracy” as being the pivot man at a Milner-Kindergarten-like group home in Washington, D.C. dubbed “the House of Truth,” established in 1911 to instill a certain value system in young men destined for future greatness. 

Brandeis

With Frankfurter’s support, Friendly was selected by Justice Louis D. Brandeis to serve as the latter's law clerk during the 1927 term of the Court. Brandeis — an American-born son of a recent immigrant who became a prosperous grain and produce merchant in Kentucky — was the first Jew appointed to the Court in 1916 by Woodrow Wilson. Two years before his appointment, Brandeis had published a very small but extremely interesting book called Other People's Money — and How the Bankers Use It, attempting to prove that the “Money Trust,” made up of the Morgan and Rockefeller banking interests, controlling corporations with resources that aggregated in the billions of dollars, constituted a monopoly. 

It was Brandeis’ thesis that the evils of concentration of social and political power could not be addressed until the bankers’ paralyzing grip was broken by a law prohibiting interlocking directorates. He recommended state control of corporations through a regulatory process designed to put power in the hands of those who owned the centralized private banking system — to enable them to eliminate undesired competition from other bankers or from the government itself.

His warning fell on deaf ears, however, until — after the collapse of the banking system in 1929 when the nation fell into an economic gridlock until 1933 — the year Congress recognized the danger of monopoly by enacting the Glass-Steagall Act prohibiting banks from owning corporate stock.  By that time a new generation of lawyers was ready to spearhead the New Deal movement within the trail already blazed in England by the Fabian Socialists.

Frankfurter

Felix Frankfurter — a Jewish emigrant from Vienna, Austria in 1894, and later a graduate of City College of New York and Harvard Law School—had been a legal adviser to Colonel House at the peace conference in Versailles in 1919, and later an active liberal co-founder of the American Civil Liberties Union and of the New Republic magazine.  He had become a friend and adviser to Governor Franklin Roosevelt in New York (first elected in 1928), while Colonel House (an old family friend of FDR's mother, Sarah Delano) was also giving advice to the President in secret from his home in Manhattan.  FDR appointed Frankfurter to the Court in 1939.

The importance of mentoring cannot be over-emphasized because it is in this way that secret knowledge about how the country is financed is passed from one bureaucracy to the next—whether it be executive, legislative, or judicial in nature. Understanding Judge Friendly’s background and philosophy of jurisprudence will reveal more of the type of justice Roberts will be than any of the papers requested by and denied to the Senate committee in charge of his confirmation.  It is obvious from the questions the committee asked in open hearings that they really don’t “get it” anyway. 

Henry Friendly was one of four attorneys who left the law firm of Root, Clark, Buckner and Ballantine in 1946 to form Cleary, Gottlieb, Friendly, and Hamilton. where Citigroup and Goldman Sachs attorney, Robert E. Rubin, was trained prior to 1966. Root and Clark had been founded by the son of Elihu Root (see “Taking the Golden Eggs, Part I — The Goose Comes of Age”).  Root had assisted the same corporate bankers, railed against by Brandeis, in using “other people’s money” to pool investment capital entrusted to their management to create vast fortunes for themselves, while at the same time creating a huge infrastructure of wealth which was allowed to trickle down to “charities” of the mangers’ choosing. By controlling such pools of wealth, these nouveaux philanthropists established themselves as America’s own class of untitled aristocrats. 

It is difficult to imagine attorney Friendly actually disapproving of this system, rising as he did from a Wall Street firm that handled the estates of Pittsburgh’s Andrew Carnegie and Chicago’s Marshall Field. After splitting from Root and Clark, Friendly’s new law firm brought in as clients the government of France and Jean Monnet (godfather of the European Union), opening branch offices in Paris and Brussells in 1960 and Hong Kong in 1980.[3] Friendly himself represented Juan Trippe’s Pan-American Airways, in which the aristocratic Whitney family were major shareholders, while Prescott Bush—from his office at Brown Brothers, Harriman — was helping with financing the corporation. [4]

The Whitneys (and Paynes), in addition to controlling a large block of Standard Oil stock with the Rockefellers, were also major players in the American Tobacco Company, as well as ubiquitous on the polo and horse-racing circuit, along with Harrimans, Mellons, and Belmonts, to drop a few names. These families were major players in controlling banks which gained control of the Federal Reserve banking system soon after World War I, and they had family members who were donors to the Democrat as well as to the Republican Party.

A need for "orderly markets"

While representing such wealthy clients as these, Friendly’s firm gave lip service to an ephemeral wish to help the disadvantaged classes.  One partner of the firm related to author Paul Hoffman,

“We thought we could — in a non-patronizing way — train the indigenous bar.  But when the minority businessmen come in, their lawyers are constantly Cravath, or Dewey Ballantine, or some guy named Goldberg who’s cut himself in for eighteen per cent of the company as his legal fee." [5]

This caviling complaint from the “Jews and liberals” who created Cleary, Gottlieb [6] reminds us somewhat of the neocons who once claimed to be Trotskyites. 

Neocon godfather, Irving Kristol, for example, quoting Machiavelli’s “patriotic” statement “I love my country more than my soul,” in a 1961 essay recommended Leo Strauss’ “laudable” analysis that “when a nation’s interests are involved, no considerations of justice, legality, or propriety ought to affect our judgment.” [7] Kristol in a 1975 essay told his readers that America’s progressive reform, epitomized by that primordial progressive Theodore Roosevelt, had abandoned populism in favor of regulation, thus becoming an "indigenous" and peculiarly American counterpart to European socialism. Both the progressive and the socialist movements were denoted by Kristol as “elitist,” whereas populism was said by Kristol to incarnate:

“an antinomian impulse, a Jacobin contempt for the ‘mere’ forms of law and order and civility. It also engenders an impulse toward a rather infantile political utopianism, on the premise that nothing is too good for ‘the people.’Above all, it is a temper and state of mind, which too easily degenerates into political paranoia, with ‘enemies of the people’ being constantly discovered and exorcised and convulsively purged. Populist paranoia is always busy subverting the very institutions and authorities that the democratic republic laboriously creates for the purpose of orderly self-government.” [8]

This neocon analysis is thus broken down into a battle between those favoring “Jacobin democracy” opposed to those recognizing the need for "institutional creativity." [9] Can't you just hear the propaganda dripping from Kristol's pen? 

He favored the elitism of the 1% and feared the populism of the 99%.

Kristol clearly positioned himself on the side of the multinational “quasi-public” corporation (he terms it “state capitalism”), having as its goal the ability to create “orderly markets.” His neo-conservatism — like Frankfurter’s liberalism and Brandeis’ progressivism — was derived from German scientific idealism of the mid-19th century. Each of these isms stemmed from the same philosophy pervading New York’s Columbia University and its environs (like New York University, City College of New York and the New School for Social Research), which the neoconservatives called “home” until they moved en masse to Washington, D.C. in 1972. [10]

A government of laws

When John Roberts speaks effusively about “the rule of law,” he assumes that his listeners understand and agree with the adversary system which prevails in the American judicial system. This dialectical legal process is the mechanism by which a judge balances two opposing arguments. Roberts sees his strength as a judge in his ability to evaluate the performance of the adversaries and rule in favor of whoever gives the best performance, presents the most persuasive evidence or the most compelling judicial precedent supporting his interpretation of the statutory or constitutional law at issue. 

The Democrats on the Senate Committee, though mostly lawyers, seemed strangely confounded by the ease with which Roberts could facilely take a position on either side of any issue.  Senator Durbin’s questioning, in particular, delved into a statement Roberts had made to him in previous days: 

“You were asked the other day about your participation in the 1996 case of Roemer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation. So I'll ask you, if the other side had come to you first and said, 'Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians,' would you have taken the case?” [11]

Following up, Durbin rephrased:  “And the purpose of my original question was this: All of us are trying to get down to, what are your core values? Where would you draw a line, saying, ‘I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values’?  … If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.  And I think that is why I've asked this question and I want to give you an opportunity now to tell us.”

Roberts--A Hired Gun?

Hired Gun

Roberts answered:

I became a lawyer—or at least developed as a lawyer—because I believe in the rule of law…. So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust:  I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system. I viewed that as—I appreciate that some may say, “Well, that sounds like you're a hired gun,” to be disparaging. “You're going to take the side of whomever [sic] comes in the door first.” I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients. [12]

Following upon Durbin’s line of questioning, Senator Edward Kennedy attempted (but failed) to ask Roberts whether he possesses a heart and soul—or whether his entire being is motivated by his head. [13]

Roberts gives more weight to institutions.

What the Senate committee wanted to know about Roberts is this:  Which side of the scale would Roberts place the most weight?

• Individual freedoms derived from the abstract concept of natural law—as taught to American school children as the basis of American democratic government; or

• Unwavering obedience to the state, with its centralized powers over market forces, coupled with ancillary powers of legal enforcement. 

In jurisprudential terms, this is a choice between two philosophies — the rights of individuals; or the rights of the corporate state.

Had the question been phrased in this way, perhaps John Roberts, paraphrasing Machiavelli, would have replied, “I love the law more than my own soul.”

That's a scary proposition. Hitler’s lawyers would, of course, have said the same.

~~~~~~~~~~~~~~~~~~~~~

NOTES:

[1] Transcript, September 14, 2005, Morning Session, Senate Judiciary Committee.

[2] Former law students may remember Friendly as the author of the famous “What is chicken?” opinion that supplies what sparse humor is available in law school. Reading this opinion will make all reasonable non-lawyers grateful they never succumbed to any temptation to pursue legal studies. It may also help to explain what Bill Clinton said, “It depends on what the meaning of is is.” Both Clinton and Roberts would have made Judge Friendly proud.

[3] The New Republic was owned and subsidized by the “liberal” wing (which some writers refer to as "left gatekeepers") of the Whitney family, particularly by Dorothy Whitney Straight and her husband Willard Straight. Willard was an investment banker with J.P. Morgan in Asia. Later the magazine would be kept alive by their son Michael Whitney Straight, a one-time Communist, who was a close friend and consultant working with Leonard Garment during the Nixon and Ford administrations on matters involving “the arts.” Straight had been a stepson, since 1925, of Leonard Knight Elmhirst, a leftist aristocrat at Trinity College, Cambridge during World War I, who worked with such notables as John Meynard Keynes, George Bernard Shaw, Aldous and Julian Huxley, Bertrand Russell, H G Wells, and Sir Richard Stafford Cripps to promote the ideal of socialism as an evolutionary process resulting from Democratic Socialist legislation. According to Straight’s obituary in The Guardian, January 9, 2004, 

“his university friends included Tess Mayor, who later married Lord Rothschild - who was also to be accused of being a member of the notorious spy ring - and who helped to expose Philby, Burgess and the prominent communist James Klugmann.”

Straight studied at the

“London School of Economics and, in 1934, Trinity College, Cambridge. There, he joined the Communist party.” 

He was also a good friend of President Franklin Roosevelt’s legal adviser Felix Frankfurter.

     Intriguingly, Scooter Libby’s mentor Len Garment worked on his very first project after arriving in Washington in 1969 with Michael Straight (according to Garment: “the model of an American aristocrat”). Straight, a former Mudge, Rose client, Garment tells us, “made an offer I couldn’t refuse.” [Leonard Garment, Crazy Rhythm: My Journey from Brooklyn, Jazz and Wall Street to Nixon’s White House, Watergate, and Beyond (Cambridge, MA: Da Capo Press, 1997), 160.] The Garment family was given the right to replace the family of Fred Hitz--actually Frederick Porter Hitz -- in an estate consisting of

“seven acres of gorgeous landscaping with access to a bass pond, a grass tennis court, and horse barns…a nice old caretaker couple…who…looked after the property. The house itself was a tidy little brick Colonial built around 1780; the history of the house was also the history of the way a part of Virginia lived for two centuries.”

Garment failed to mention that Frederick Porter Hitz, a 1961 Princeton graduate with a 1965 Harvard law degree, was first employed after law school as a lecturer at the newly created university in Ife, Nigeria — a former British colony which had gained independence only in 1960—and followed that as a foreign service officer from 1967 through 1973 in the former French colony of the Ivory Coast in West Africa, returning to Washington in 1974 as a congressional relations officer. The rest of the Hitz resume includes the following:

• U.S. Department of Defense, Washington, deputy assistant secretary of legislative affairs, 1975-77; 
• Executive Office of President Carter as member of the energy policy and planning staff, 1977; 
• U.S. Department of Energy director of congressional affairs, 1977-78; 
• Central Intelligence Agency, legislative counsel, 1978-81, inspector general, 1990-98. 

In the latter role, it was Hitz who was assigned the task of investigating the claims of Gary Webb’s “Dark Alliance” series, published in the San Jose Mercury News relating to the C.I.A.’s alleged drug trafficking activities through cut-outs such as Ricky Ross, Danilo Blandon, Norwin Meneses implicated with the Nicaraguan contras as being responsible for the emergence of crack cocaine in South Central Los Angeles. Given Hitz’ background it is understandable that he “found absolutely no evidence to indicate that CIA as an organization or its employees were involved in any conspiracy to bring drugs into the United States.” Hitz Report, Volume I: The California Story, 1998.

Before moving to Washington, Garment had been asked by Peter Flanigan (a Dillon, Read partner and adviser to Nixon on financial and economic matters) to find a new person for chairman of the National Endowment for the Arts (NEA), and he spent untold hours with Michael Straight “to patch together a plan to make the endowments into significant institutions.”

In the “summer of 1974” (Nixon resigned in August 1974), the Washington Monthly described Garment’s lease from Michael Straight, a Democrat, as a “sweetheart” contract arranged as a quid pro quo in exchange for Garment’s self-described “ploy” to sneak the Rockefeller Foundation’s Nancy Hanks into the administration as a cover for Michael Straight. [Crazy Rhythm, 162-169]. 

[4] Kevin Phillips, “Military Industrial Superiority Complexes”. According to Phillips: “As WWII gathered, Brown Brothers Harriman and Skull and Bones each boasted extraordinary numbers of persons who became private or public leaders of the military-industrial complex and its intelligence auxiliaries. Averell Harriman was dabbling in the aviation business, studying imaginative new airplane designs and helping to finance fellow Bonesman Juan Trippe’s Pan American Airlines.”

[5] Paul Hoffman, Lions in the Street (New York: Saturday Review Press, 1973), 214.

[6] Hoffman, 218.

[7] Irving Kristol, “Machiavelli and the Profanation of Politics,” reprinted in Neoconservatism: The Autobiography of an Idea (New York: The Free Press, Simon & Schuster, 1995), 158. For a discussion of Leo Strauss and his neoconservative followers, see Robert Locke’s “Leo Strauss, Conservative Mastermind,” in FrontPage magazine online.

[8] Kristol, “Corporate Capitalism in America,” Neoconservatism, at 214.

[9] Kristol, 227.

[10] For more discussion about the neoconservatives’ assistance in fundraising efforts for Republicans, see “Killer Political Instincts”.

[11] Transcript, September 15, 2005, Evening Session, Senate Judiciary Committee.

[12] Transcript.

[13] He prefaced his question of what kind of justice he would be with this remark: “What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. If you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse.” See Transcript.