254
Oral History of Philip Lacovara, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Wednesday, October 2,
2024. This is the ninth interview.
MS. JOHNSON: It’s a pleasure to see you again. Since this is a project of the D.C. Circuit,
it makes sense to explore a little bit some of your deeper connections
there. Can you talk about how professionally and socially you interacted
with members of the Circuit and the greater community?
MR. LACOVARA: Sure. I chaired a couple of committees for the court, including the
Advisory Committee on Procedures for the D.C. Circuit. We developed an
internal operations handbook to guide practitioners before the court of
appeals on the lore not just the law in the formal rules.
I also participated as the chair of the Committee on Procedures in
revision of rules to deal with the growing caseload, especially in the field
of administrative law where complex records became the norm as distinct
from what much of the case law had been in the earlier days when they
were pretty simple and straightforward criminal appeals. The nature of the
caseload became much more heavily slanted toward complicated federal
regulatory matters. So those kinds of changes or evolution in the caseload
led to revising both the formal rules as well as the operating procedures.
We wanted to provide guidance to practitioners about the way the court
actually functioned in a way that would be helpful to them.255
I also chaired for a while the Admissions Committee, although that
was essentially a standby committee in case there were disciplinary
matters. I don’t remember whether there were any.
In addition, both before and even after Judge Leventhal’s untimely
passing, I was regularly a member of the Judicial Conference of the
Circuit. The court met regularly during the summer for a bench and bar
kind of process either in Williamsburg, Virginia, which is lovely, or at the
Greenbriar out in the Blue Ridge Mountains. Those were interesting and
convivial experiences where lawyers and judges got to spend time with
each other. That was even before CLE was required, but there were
typically interesting panel discussions on developments in the law. That
was, I suppose it’s candid to say, the nominal explanation for why these
were tax-deductible business trips out into what were otherwise
considered wonderful vacation spots. So there was a combination of
professional development as well as conviviality meeting with other
judges and their spouses and other lawyers and their spouses. It was a
source of longer-term developments that I think was generally a healthy
process.
MS. JOHNSON: Did Madeline go with you?
MR. LACOVARA: She almost always came with me, and that was true for other lawyers who
brought their spouses. Women lawyers brought their husbands.
As I was going through my career in Washington, one of the very
benign and wholesome developments was that more and more women256
lawyers were achieving prominence in a sense that they were serving as
law clerks and then going on to be invitees to the Judicial Conferences. So
more and more, it was typical to see women lawyers as conference
members, and their accompanying spouses were their husbands or
significant others. I think at that point it was much more traditional for
couples to be formally wed rather than just be significant others.
MS. JOHNSON: You raise a question in my mind, and I’ll get back to some of your circuit
interactions in a moment. I continue in my day job to hear about an
increasing number of women practicing, arguing before the High Court
and the circuit courts and yet the numbers are not even close to parity. I
wonder how that strikes you as you have watched the arc of this over time.
MR. LACOVARA: I think it’s true that while the profession is now virtually at par between
men and women, and I think certainly that’s true in law schools, the
number of women going into litigation is not measuring up to the same
percentage. I don’t know whether it’s a personality thing or a lifestyle
choice thing, but litigation tends to be much more confrontational, much
more intense than tax law, employee benefits law, corporate law,
environmental law where the matters tend to be more manageable and
more circumspect, or at least not as hostile. Litigators tend to be much
more aggressive and Type A’s. I don’t know whether this is always going
to be true of the case, but I think it probably still is the case that a smaller
percentage of women are comfortable with that kind of demanding
lifestyle. It is also the case that women of a childbearing age are257
sometimes taking interruptions in their professional careers. I think it may
be harder because of the long-term commitment of litigations to schedule
your personal life around the specialty of a litigator, and that I think
explains why there are in my observation fewer women in court, trial
court, appellate court, and Supreme Court.
MS. JOHNSON: Thanks for that, and I wanted to ask one more question before I get back
into some of your circuit responsibilities and duties. We’ve talked a little
bit about Judge Leventhal. We’ve talked a little bit about Judge Sirica.
We’ve talked a little bit about Judge Bork and Judge Paul Friedman. Are
there any other judges on the circuit with whom you had a pretty close
relationship that bears mentioning in your oral history?
MR. LACOVARA: Certainly, Judge Bazelon. He was the chief judge for much of my period.
He was a towering figure, a very engaging person, and very strong in his
opinions on a lot of things. He was the head, of course, of the liberal
branch of the circuit during the years when I was spending most of my
time there. He had a passion for reform of criminal responsibility,
particularly with respect to mental health and the way that impacted
criminal responsibilities. He was also quite active in pursuing medical
expertise as a guide to dealing not only with criminal responsibility but all
sorts of other types of problems that one confronted in a major city like
Washington. So medical healthcare was something that he was active in.
There were cases that I would say provided him with an opportunity to
pursue his vision of mental health law reform. Had the cases come before258
a panel without Chief Judge Bazelon on them, they might not have
unfolded as they did or indeed the mental health issue may not have
acquired the kind of prominence that they did.
He and his wife Miriam were quite gracious to Madeline and me
over the years. The opportunity to spend some time with them was a
treasured aspect of my life there.
I also had a relationship with Carl McGowan. Judge McGowan
was sort of a centrist. He was a little bit right of the middle. I think most
observers would say that on a court that was split reasonably cleanly
between left and right with the left being Bazelon and J. Skelly Wright and
Judge Fahey, another wonderful man.
I recently, just as a parenthetical, got a couple of notes from Judge
Fahey’s grandson who is doing a biography. He sent me some articles that
he had come upon of Judge Fahey in his World War I flying costume. He
sent me another note quite recently about a racial justice case that Fahey
had undertaken pro bono in the 1920s. As I was reading these things and
recollecting my connection with Fahey, I realized this brought me back to
within one degree of separation World War I, a person who had had just a
wonderful career as a generous, spirited and warm and gracious man.
Anyway, Fahey was part of the liberal wing. The right was Judge
Burger, Judge Tamm, and I can’t remember now who the third was. But in
the middle were Leventhal left of center and McGowan right of center.
McGown, like Leventhal, were members of the Class of 1936 from259
Columbia Law School. Both of them had been in law school with my
father. McGowan for that reason took more of an interest in me as a mere
law clerk than he might have in some other random law clerk.
One little story about McGowan. As I mentioned a couple of times,
the court of appeals when I was there in the mid-1960s had a very heavy
criminal caseload because it was reviewing virtually all of the major what
would otherwise be local cases before the establishment of the truly
autonomous D.C. court system in the 1970s. I remember going to a
lecture, a luncheon talk that Judge McGowan gave probably a couple of
years after I finished my clerkship. He had been a corporate lawyer in
Chicago, and the title of his talk was “a railroad lawyer looks at federal
criminal law.” It was such an amusing topic because it illustrated one of
the aspects of the D.C. Circuit that made it unique. That is, people from
around the country were appointed to the D.C. Circuit. It was not
composed exclusively and perhaps not even primarily of lawyers from
Washington D.C., but rather it was at that point truly the national court. It
was a little later that the federal circuit was created with its specialized
jurisdiction, but the D.C. circuit was viewed as the national court both in
terms of its oversight of federal responsibilities including federal agency
practices, but also because its personnel was selected from around the
country, and that was not true of the other regional circuits.
So I would say that McGowan, Fahey, and Bazelon were the
judges with whom I had the most regular contact. Burger I also recall260
being very nice to me. There was a law clerk’s softball team and then, as I
believe now, there were softball leagues that played on the Mall, on
various ballfields on the Mall. We played against other teams from federal
agencies and from law firms. I remember at one point I actually tore up
my knee and was in the hospital for a week in traction while I was serving
as a law clerk. Both Judge Leventhal and Judge Burger made very
gracious accommodations to get me a parking space in the courthouse
garage because I was on crutches for a while after that. Judge Burger was
very kind in doing some accommodations and working with me in the
courthouse to get me up and around.
MS. JOHNSON: Was this a running play? Was it a defensive play? What happened, if you
remember?
MR. LACOVARA: I was going for a flyball and stepped in a hole. The image that anybody
who’s come to Washington lately has of the Mall or much of Washington
is quite artificial because if you go back sixty years ago, things were a bit
more ramshackle. I’ve talked a little bit about Pennsylvania Avenue,
which is now gleaming with marble and granite facades and everything is
manicured and spic-and-span. Back in the 1960s, Pennsylvania Avenue
and the Mall and lots of other areas of D.C. were a lot sketchier, and that
included maintenance of the Mall. Yes, we played softball, but you really
did put life, or at least limb, at risk playing there. I was not the only person
who suffered what was otherwise an annoying injury trying to lope around
on the irregular surface of the Washington Mall.261
MS. JOHNSON: What a story. I’m glad I asked that question. Turning back to some of the
service work you did for the circuit, you had mentioned in your CV that
you had some responsibility or oversight for discipline I think.
MR. LACOVARA: Yes. There was the Committee on Ethics I think it was, or the Committee
on Admissions, which had oversight over disciplinary matters. That
typically was simply derivative. I don’t remember any proceedings that we
actually initiated. It was rather making recommendations if there were
questions about the eligibility of a candidate because of some other
disciplinary matter or criminal conviction that might have shown up on an
application or if the lawyer who’s eligible to practice before the circuit had
become subjected to discipline in some other jurisdiction, we would have
to analyze it. As I said, there was mainly a derivative function.
One other local matter that came about, and I honestly don’t
remember how this originated, I became a trustee and then ultimately
chairman of the Board of Trustees of the District of Columbia Public
Defender Service. I did that for a number of years. I may have been
appointed by the district court or by the court of appeals. I don’t remember
how the trustees were selected. But I served on that for a number of years,
and it was very satisfying work because the D.C. Public Defender Service
was then and I think probably still is very highly regarded as one of the
premier public defense agencies and had a reputation for providing high-
quality defense to indigents. I would venture to say better than the service
that might have been provided by appointed counsel who did not have262
criminal law as their expertise but were doing this kind of work as
volunteers in performing pro bono service.
MS. JOHNSON: Yes. Still has a sterling reputation. Was this during the period when
Charles Ogletree was there if you recall? Did you have interactions with
him or others?
MR. LACOVARA: He was one of the staff lawyers when I was there, a highly regarded trial
lawyer. He went on to academic achievement thereafter, but that was the
period when I was there.
I remember I did get sued because we passed over the deputy
director who was a black lawyer who wanted to be promoted to replace
Pat Hickey. I think Pat Hickey was the director of PDS when I was there,
and then he left to do something else, and we did not promote Franklin
Carter. Frank Carter was the deputy, and when he was passed over for
promotion, he sued the trustees for race discrimination. I believe there was
a trial before Judge Joyce Hens Green who dismissed the complaint
finding that the motive for the personnel decision was not racially based or
racially tainted.
So that was one of the two cases in which I wound up being sued
because of my professional role. The other one I think I mentioned was in
connection with my service as President Reagan’s nominee for
appointment on the District of Columbia Judicial Nomination
Commission.263
MS. JOHNSON: Did you have to sit for a deposition or testify or anything in this PDS-
related case?
MR. LACOVARA: Yes. There was an actual trial. I testified at trial about why we had decided
that Carter was not the right person for the job.
MS. JOHNSON: What was the experience like sitting on the witness stand instead of being
the person in control asking the questions?
MR. LACOVARA: It’s frustrating. We had counsel, and I don’t remember who our counsel
was. As you would intuit, I was carefully instructed to listen to the
questions, the same sort of advice that a trial lawyer gives to his own
client. Listen to the questions, don’t be combative, don’t try to make up
what you think is the answer that will help your cause or don’t try to make
speeches to justify your decision. Wait for the questions that will be asked
in your lawyer’s view to give you the opportunity to make these points. It
was not a comfortable position certainly. I think I said to my wife when
we first received the papers, this is another example of the principle that
no good deed goes unpunished. It took a lot of time to serve first as trustee
and then as chair of the PDS board, a non-compensation position, of
course, and yet I wound up being sued. For years thereafter when
questionnaires came along, question 14 or something on a mortgage
application or something was, have you ever been sued. Yes, I’ve been
sued, and so forth.
MS. JOHNSON: A 360 view of the legal system whether you liked it or not.
MR. LACOVARA: Absolutely.264
MS. JOHNSON: Is there anything else you wanted to share about the D.C. Circuit? If not,
I’m going to move in a slightly different direction.
MR. LACOVARA: I think that’s about it. Have we talked about Judge Leventhal’s funeral?
MS. JOHNSON: I don’t think we have. We should.
MR. LACOVARA: I think I mentioned that I remained reasonably close with Judge Leventhal
and his wife Kay for the thirteen years or so after my clerkship with him. I
remember when he suddenly died, there was a gathering at his home, and
Kay, who was Lutheran, the Judge was Jewish, and she was in some
distress because there was an uncertainty about how and what funeral
arrangements could be made that would allow her to be buried with him
ultimately when that time came. One of the possibilities was a burial at
Arlington Cemetery where a Jewish burial could be performed with the
appropriate recital of the kaddish, which the judge would have wanted. I
don’t remember the precise detail about why no other feasible site was in
the offering, but at the time, Arlington Cemetery was closed for burials of
persons who had not been in active combat. This was in 1979. Madeline,
my wife, the great problem-solver, said well there’s no doubt that that
restriction can be waived for somebody who after all did render great
service to the country. He was an officer. I think he was technically in the
Coast Guard during World War II. He was on General Jackson’s staff at
the Nuremberg Trials, and so had a distinguished military career apart
from his service to the country as a judge. So Madeline suggested that
someone call Lloyd Cutler, who at the time was serving as counsel to265
President Carter. Cutler was somebody we all knew from being around
town. That’s somebody else I maintained a long-standing relationship
with. So someone called Lloyd and said here’s the problem. Is there any
way that the President can waive the limitation on burials for non-combat
veterans. To make that long story short, an exception was granted, and
Judge Leventhal was buried at Arlington. I believe that his wife ultimately
was interred beside him.
It was an example of a couple of things. One is my wife’s problem-
solving abilities, but second, it was also an illustration of the principle, as
harsh as it may sound, that it’s not what you know, it’s whom you know.
If a person was not in a position to call up the counsel to the president to
say here’s our problem, can you help get it solved, the problem may have
become unsolvable or at least unsolved.
MS. JOHNSON: A very good story about the way Washington works. I want to invite you
to share some lessons that you have learned over time for people who may
be reading this decades into the future who are interested in law or
practicing law.
MR. LACOVARA: I would say that over the span of the sixty years that I’ve been doing this,
the practice of law has evolved, or I might say devolved. I say that fully
recognizing that if one goes back to some of the Greek philosophers, one
can find repeated statements that the current generation is much worse off
than the prior generations, and the children are more ill-behaved and
society is coarser and so forth. There is a natural tendency I think for all266
old men and maybe now old women to have this golden-age philosophy. It
was made into a wonderful movie called Midnight in Paris, a Woody
Allen movie, which is a great example of the fallacy of golden age
thinking – that it was always better in the past.
With that acknowledgment and disclaimer, I would say that one of
the ways in which the profession has changed for the worse, in my view, is
that it has become more dollar-centered, more aggressive, more all-
consuming. And all these things I think tie together. I would attribute
much of this to the resentment that lawyers in the 1980s began to feel
about the enormously greater sums that investment bankers seemed to be
making than lawyers were.
I remember when I was interviewing with a major Washington law
firm, I made a comment to one of the partners with whom I was talking
about how I sure hope that one day I would be in a position to make
$100,000 a year. Now, of course, $100,000 is a part of a starting bonus for
young lawyers. I know this is all inflation adjusted, but even without
inflation adjustment, the amounts of money that lawyers make,
particularly Wall Street lawyers, now is multiples, even inflation adjusted
as contrasted with the amounts of money that Wall Street lawyers made
when I started. That is not without cost, and the cost is, in my observation,
a diminution in the relative amount of time and maybe the absolute
amount of time that lawyers spend on such things as community activities,
professional involvements, pro bono work. When I started working as a267
young partner in a Wall Street firm, the norm that was expected for
lawyers, partners and associates, was something like 1,700 hours. Now it’s
2,100, 2,200, 2,300.
I remember my late-son who was a partner at some major law
firms would typically log 2,800 or 3,000 hours. That’s almost twice as
much time as was the norm when I started. Even the 2,200-hour norm is
40% more on top of what was viewed at the time as a full-time
professional life. That does not come without cost.
I think lawyers have tended to become more aggressive and less
congenial. I think I’ve told the story about my case against Abe Fortas
when I was asked to make an accommodation so that he and his wife
could take a trip for their winter vacation, even though it was going to
require that we postpone the oral argument in a Supreme Court case. I
would bet dollars to donuts that that kind of request would not have
received a favorable response in this climate, where it’s much more “I’ve
got the upper hand and why should I yield to it?”
I have repeatedly tried to emphasize in recent years the importance
of civility in practice. In fact, this is not just a new phenomenon. I wrote
an article in the ABA Journal that was captioned “Supreme Incivility,” and
I was taking as my point of departure what was even at that point, this is
probably 20 or 25 years ago, a notion that the legal profession could
become more uncivil and that lawyers were simply getting to be more like
combatants in a prize ring than members of a profession. The point of the268
article was it’s hard to encourage work-a-day lawyers to be more civil to
each other when you see the way justices of the Supreme Court are
haranguing each other and accusing each other of the most vile kinds of
misstatements, unjust and deceitful commentary. Unfortunately, I
highlighted Justice Scalia as one of the chief offenders at the time because
he was unconstrained in the way he would describe the majority opinion.
Of course dissents are almost always more vitriolic than majority
opinions, but there are ways to do it that recognize that honest people can
have differences of opinion, and even if you don’t think they’re being
honest, you shouldn’t say it, especially when you’re in a position of
authority in a way that can influence others.
That, I think, is a consequence of the flow-down from the senior
ranks to the junior ranks. Younger lawyers learn by example, and when
they see senior lawyers engaging in what used to be called sharp practice,
they figure, well, that’s the way lawyers behave, and that’s the way I’ll
behave, and indeed, in order to show that I’m better than the average run-
of-the-mill lawyer with whom I’m competing for promotion, I’ll be even
sharper in my practice. Sharper in the sense of being unforgiving, harsh,
manipulative.
I think the great strides that have been made in the financial
remuneration that lawyers in the first quarter of the 21st century are
earning have come at a price manifested in various ways.269
MS. JOHNSON: I’m going to end this with a topical question, except I think it fits partially
into the theme you just outlined. This morning there was a news release in
my inbox that said Trust in U.S. Supreme Court continues to sink. Asked
how much they trust the Court to act in their best interest, one in three
Americans say not at all. This was from the Annenberg Public Policy
Center at the University of Pennsylvania. People in law school, including
some I’ve met recently, are talking about a legitimacy crisis in the courts.
Some like to call it a perceived legitimacy crisis. This is a matter of much
ongoing debate and public concern among practitioners, especially folks
like you who have reached the highest levels of the profession. How do
you think about this exactly?
MR. LACOVARA: I think a lot about it, and I’ve written a lot about it. I’ve testified as recently
as a week ago today at the Senate Judiciary Committee about one aspect
of it. Two days ago, I had an article published in Bloomberg U.S. Law
Week on this very subject in which I addressed the falling sense of public
confidence in the Supreme Court, and I offer a couple of explanations for
it. It is profoundly important because, and this is something that I quoted
in my Senate testimony a week ago. In the 1950s, a Yale law professor
named Alex Bickel wrote an article called the “Least Dangerous Branch,”
and it was at a time when the court was being attacked in part because of
its desegregation decisions and its extension of civil rights or civil
liberties, particularly in criminal cases. This was resented on the
desegregation front by white southerners and on the criminal procedure270
front by the right-wing law-and-order types. What Bickel was saying was
the court needs to be cautious because it needs to preserve its legitimacy.
It has neither the purse nor the sword, that was his point, thus the least
dangerous branch, and it depends for its effectiveness on public
acceptance. So credibility, public confidence, is absolutely central to its
performing its vital function in maintaining a system of the rule of law.
The rule of law can be sustained largely to the extent that the public
believes that the law as being articulated by the Supreme Court is well-
grounded in honest, honorable, articulable, and understandable premises.
Today, we have gotten to the extreme where, as you mentioned, a
very sizeable either plurality or majority of the country doubts that the
court is acting in that way. It’s not unique that the court comes in for
criticism, but at least I think it is the case that the criticism today is based
upon doubt in the honesty or integrity of the decisionmakers.
In prior eras – a criticism is not unique to even the 20th century
much less the 21st – the criticism was of decisions not of the court as an
institution or the justices as honorable men and women, and that is what’s
decisively different.
There are several reasons in my mind why the confidence in the
court has fallen to its low ebb now. I think the turning point is 1987 with
the nomination of Robert Bork to the Supreme Court, and things have
gone downhill since then. The principal ingredient was the change from
what had been almost 200 years of tradition of accepting the president’s271
nominee, assuming basic capability, as worthy of confirmation, even if he
came from another party. On this one, the Democrats are to blame for
starting it because they decided to sabotage Bork. He was extreme on the
right. There’s no doubt about it. But by any of the traditional measures
that had been in place for almost 200 years, Robert H. Bork was well-
qualified to sit on the Supreme Court. He was rejected solely because of
his ideology, which was not consistent with the views of some people,
including Senator Kennedy most especially. That was the end of that. And
then maybe Joe Biden as well. That changed the landscape.
One of the other consequences, and this was evolving almost
simultaneously, is the rise of the litmus test, and for that, abortion is the
classic test so that no one can be appointed to the Supreme Court today by
a president from the left who is a Democrat unless he or she is ardently
pro-choice, and no one could be nominated, perhaps confirmed by the
Senate, depending on who’s controlling the Senate, by a Republican unless
one is ardently pro-life.
Now that took us up through the Dobbs case in 2022 when Roe v.
Wade was overturned. There will be new litmus tests, but what the litmus
test phenomenon did was introduce into the equation of judicial selection
for the Supreme Court two groups or two viewpoints for screening of
candidates more or less institutionalized. On the right, that is the
Federalist Society, which has a whole host of ingredients but one of them
was pro-life, that is anti-Roe versus Wade, but pro other things, including272
pro presidential power. So that as we’ve observed, one could not get
appointed to the federal bench, or at least would not be under
consideration to be promoted to the Supreme Court, without having
Federalist Society membership or Federalist Society-approved credentials.
On the left, the same thing is done. Several groups are active, some of
which I have actually worked with despite my earlier traditional
conservative Republican affiliations, and they are equally avid on the
opposite side for screening out people.
Another unwholesome development that has taken place since
1987, and I’ve written on this subject as well, that I think essentially
institutionalizes this process of litmus testing is the phenomenon of
looking exclusively or virtually exclusively for candidates for the Supreme
Court to candidates who are already serving on the courts of appeals.
What this has done is eliminate and designedly eliminate the uncertainty
that led to a Sandra Day O’Connor or John Paul Stevens or a Warren
Burger or a Harry Blackman, people who might have been thought
generally conservative or generally liberal but who turned out once they
got to the Supreme Court to be different. It has also eliminated a lot of the
people who provided much of the integrity or plausibility or respectability
from prior eras, people who had been United States senators, who had
been presidents of the bar, who had been leaders in other segments of the
law. That gave them their own stature that a mere anonymous court of
appeals judge from somewhere doesn’t have. So when the decisions came273
out, in my view, they were tempered with wisdom and experience that is
different from the kind of decision you get from a professional magistrate,
somebody who has spent virtually his whole career in a lawbook-lined
judge’s chambers who then winds up on the Supreme Court and is
unknown outside of the narrow confines of the legal profession except as a
judge.
So the phenomenon of selecting exclusively from courts of appeals
has two consequences that I think tended to undermine both the quality of
the decision making and the public confidence in the decisions. One is that
it has deprived the court of membership of people of varied types of public
stature so that they carried with themselves public reputations that created
a presumption that they knew what they were doing and that they were
acting in the public interest, having served in the Senate or as governors or
in other public roles. But also this phenomenon has made it easier for the
groups either seeking to support or oppose a candidate to screen their
records because they’ve made records that commit themselves to one
philosophy or the other, one extreme or the other. And indeed, I think even
below the Supreme Court it is an unwholesome phenomenon because it
provides the worst possible incentive for judges on the courts of appeals to
prove themselves as candidates for promotion. It drives them to show that
they can be good reliable liberals or good reliable conservatives. The more
extreme and definitive their views are, the more likely they are to be
selected by their group once that group is in power, left or right.274
So that is my take on the structural factors that have led to the
court’s diminished public repute and therefore the diminished public
acceptance of the validity and legitimacy of its decisions.
MS. JOHNSON: I don’t know if you’ve seen or read this, but a leading conservative
practitioner, Kannon Shanmugam, gave a speech a couple of weeks ago to
the Federalist Society at Duke basically saying it is not helpful for people
to continue to describe the Court as illegitimate or cast doubt or aspersions
on its legitimacy. It’s actually quite dangerous. It sounds to me as if you
have a somewhat different view of the cause and effect, the chicken or the
egg there.
MR. LACOVARA: A similar point was made by Senator Lindsey Graham at a hearing at
which I testified last week. I think that’s mistaking the problem or its
cause. I don’t think it’s dangerous to challenge the legitimacy of the
Court’s decisions if you’re also explaining why they are illegitimate. Now,
it is certainly true that we need to reconstruct legitimacy, but I don’t think
you get there unless you grab the people who are in a position to affect
that process by the scruff of the neck and say, look at the conditions that
you have created. And this applies not just to the Federalist Society and
the people on the right. It applies equally to the people on the left, in my
view. If you are a Democrat and you believe, just for example, as long as
there are restrictions on abortion being enacted by states, this kind of issue
is going to keep coming up. If you are a liberal Democrat and you say I
will never ever tolerate a pro-life person being appointed to the Supreme275
Court, then you are part of the problem. And the fact that you’re engaging
in the rhetoric that makes ideology the touchstone rather than objectivity,
respect for the legal tradition, respect for precedent, and all sorts of things
that ought to be the touchstones for determining who is qualified to be on
the Supreme Court, then you are part of the problem that is leading to
decisions that are driven by a result-oriented ideologically premised
membership.
So I think while it is certainly undesirable to have the Court’s
legitimacy in question, the reality is there are reasons why its legitimacy is
in question, and I think, as I testified last week, the decision by a 6-3
majority in the Trump immunity case cannot be justified as honest and
legitimate on the basis of precedent, history or text. In my view that
decision could only be reached by people who were driven to a result that
they wanted to reach, and that’s a reason why I consider it illegitimate in a
functional sense. It’s legitimate in the sense that they are the Justices of
the Supreme Court. They’ve got the power to do it, but they are
squandering their diminished power as the least dangerous branch. They
are making themselves even less dangerous as the country is paying less
and less deference to what they decide.
MS. JOHNSON: Thank you so much for sharing these thoughts. It has been such a pleasure
to speak with you for these hours. Is there any closing thought you wanted
to share?276
MR. LACOVARA: I appreciate all the time you’ve taken. I know when you volunteered to do
this, you probably never expected that it would consume nine sessions, but
I have appreciated your courtesy and your insights. It’s been a great
pleasure for me to have spent almost sixty years as a practicing lawyer.
I’ve met a lot of wonderful people. I’ve had a chance to chat about some
of them during our conversations. I remain optimistic about the legal
profession, and I remain optimistic about our country. We’ve gotten
through worse, and I hope we’ll get through this sooner rather than later.
Thank you very much for the opportunity to vent or expatiate.
MS. JOHNSON: The pleasure is all mine.