POLITICS APRIL 26, 1993
There is an occupational hazard of writing about Mario Cuomo: even if you are generally sympathetic to him, he'll call to correct you. And the New York governor was not daunted by his status as the front-runner for the next Supreme Court seat. (As this article went to press, his office confirmed reports that he has sent a letter to the president withdrawing his name from consideration; but Cuomo has been known to change his mind before.) No sooner had I written a piece speculating about Cuomo's constitutional philosophy in light of his youthful law review articles (see "Court Test," TNR, September 28, 1992) than the phone rang.
"I have one quibble with your piece," Governor Cuomo said, combatively but amiably. "You say: `Never mind the hypocrisy of Democrats (including Cuomo) who criticized Presidents Reagan and Bush for applying a litmus test on Roe and have accepted Clinton's identical test with enthusiasm.' When did I ever accept the litmus test?" On Albany radio in July, I replied, Cuomo had said that the Casey decision "could very well mean Bill Clinton's election" because Clinton would "pick people for the Supreme Court who he believes will protect abortion rights." "Exactly," said Cuomo. "Who Clinton believes will protect abortion. But I didn't endorse it."
The distinction seemed legalistic but not completely implausible; and encouraged by Cuomo's banter, I joked that perhaps it hadn't been fair to resurrect two youthful law review articles he had published during his ten years as a lecturer at St. John's Law School. In one of them, "Appellate Advocacy: Some Observations and Suggestions," which appeared in the Revista del Colegio de Abogados de Puerto Rico (1963), Cuomo had observed that the New York Court of Appeals, on which he clerked from 1956-58, was less concerned with legal precedents than with doing justice: "The existence of a contrary line of decisional authority will not obstruct the pursuit of what is fair and just here and now." He then seemed to approve of the sentiment, insisting that "the attorney who does nothing more than feed legal data to the Bench misconceives his function.... The major thrust -- however cloaked in authority -- must be toward the court's sense of equity and fairness." Perhaps in the intervening thirty years, Cuomo had changed his mind.
"No," Cuomo replied. "I still believe what I said. And do you want to know where I got that? An article by Karl Llewellyn, `How Appellate Courts Decide Cases.' It's the most insightful article I've ever read about how judges really decide. Go read the Llewellyn article, call me back, and we'll talk some more."
I then raised the issue that concerned me most. Dan Quayle had declared on the campaign trail that Cuomo, as a justice, would declare capital punishment unconstitutional. But the charge was unsubstantiated: Cuomo has never publicly indicated his views on the constitutionality -- as opposed to the morality -- of the death penalty. Asking the question directly seemed the most reliable test of Cuomo's ability to separate his personal preferences from his constitutional judgments. "Do you think capital punishment is unconstitutional under the Eighth Amendment?" I asked. "How can I answer a question like that?" Cuomo replied. "I would need to know the facts, I would need to know the particular circumstances. I can't answer a hypothetical like that." But isn't this an easy question? The text of the Constitution allows capital punishment, and there is no plausible argument that the people who ratified the Eighth Amendment, or the people today, think it's cruel and unusual. "Ah Rosen, Rosen," Cuomo replied, "you need to practice law for a while."
Soon after the conversation ended, I read the article Cuomo had recommended. Karl Llewellyn, who taught contracts, commercial law and jurisprudence at Columbia from 1924 to 1951, was arguably the greatest of the legal realists. He wrote "How Appellate Courts Decide Cases" for the Brandeis Lawyers Society in 1945, and then incorporated the monograph into his most important work, The Common Law Tradition: Deciding Appeals, in 1960. (Cuomo actually cites the Common Law, rather than the monograph, in his own article on appellate advocacy.) The Llewellyn article is colloquial and provocative: "Every last one of you has been trained in the silly ideology that the rules of law decide cases, which they never did and never will." Instead of the pretense of legal formalism, Llewellyn calls for a resurrection of the "Grand Style" of common law judging that prevailed in the early nineteenth century: "the recurrence to sense, horse sense, sense outside the law, tested from outside the law and stated quite openly on the face of the opinion as a guide to decision."
The week after Byron White announced his intention to resign, I wrote to Cuomo, suggesting that in light of the Llewellyn article, I continued to have some concerns about his affinity for legal realism. The governor called again, but this time he was much more aggressive. "There's a budget bill on my desk and I only have a minute," he said. "But there's something in your letter I didn't understand. Where did I ever express an `affinity for legal realism'?" In your law review article, I said. "What article?" Cuomo asked. The one you said was inspired by Llewellyn, the one we discussed. "When did we discuss an article? Where was it published? When did it appear?" In the Revista del Colegios de Abogados, 1963. You called to talk about it. "Oh, that article," said Cuomo, abruptly shifting gears. "That was an article about the way the court was deciding cases. I said Llewellyn was the single most insightful article I had read about what was happening. But I didn't say whether it's a good idea."
Well, is it a good idea? I asked unnerved by the odd exchange. "I was talking to lawyers about how to address courts," Cuomo replied. "I said these courts are basically interested, in the end, about what is just. They have to make it fit the law; it has to comport. I didn't say this is the way it should work. That's for brighter people than I." But didn't you say you agreed with Llewellyn? "Some of the opinions he referred to I had worked on [as a law clerk]. I was amazed at the guy's insight, amazed at what he knew that was not in the opinion. It's as if he were listening in on the confidential conferences of the Court. But I didn't say if I agreed."
If you're not a legal realist, I asked, then what is your judicial philosophy? This was Governor Cuomo's reply:
It would be as hard to answer that as to say what is your philosophy of umpiring. How can you fix in advance the way you're supposed to call the pitches as they occur? It's very much an ad hoc thing. Maybe after you do a lot of ad hoc things, they say that's the way it was. But that's creating the philosophy retroactively.
The telephone conversations and the law review articles are revealing on several levels. The first concerns Cuomo's refusal to articulate a constitutional philosophy. Despite Clinton's claim that Cuomo "spends more time reading and writing and thinking about [constitutional] issues than any other elected official I know," Cuomo actually has written little on the subject. (A 1986 speech to the aba makes reassuring noises about judicial restraint; but it is too vague to be helpful.) Cuomo claims, uniquely among politicians, to be a legal intellectual; but when challenged to define an intellectual vision, he retreats into the sports metaphors of an "umpire." He invokes Llewellyn, moreover, as an academic pedigree for his pragmatism; but when Llewellyn becomes inconvenient, Cuomo backs away.
In fact, Cuomo might be more persuasive as an unapologetic Llewellynite. In the The Common Law Tradition, on the same pages that Cuomo cites in his 1963 article, Llewellyn explicitly rejected the "is/ought" distinction Cuomo now invokes. The best judges are and should be guided by policy considerations, Llewellyn argued: "The Grand Style is the best device ever invented by man for drying up that free-flowing spring of uncertainty, conflict between the seeming commands of the authorities and the felt demands of justice." But Llewellyn did not see the Grand Style as a license for run-amok judicial policy-making. Unlike earlier legal realists (such as Jerome Frank) who were more cynical about the distinction between law and politics, Llewellyn emphasized the constraints as well as the leeways of common law judging. He argued that judges are constrained not by precedents or legal rules, but by their "situational sense," by the facts of each case, by real life norms and by prudence and tradition.
Whatever Cuomo chooses to call himself, his vision of the justice as umpire is quintessentially realist. The vocabulary he uses to disclaim a judicial philosophy is a Llewellynian vocabulary. ("Realism is not a philosophy, but a technology," Llewellyn wrote in a famous italicized passage in the Common Law.) This is not surprising for a man like Cuomo, whose formative intellectual experience in the law was a two-year clerkship on an important state supreme court. Most of the cases Cuomo worked on during his clerkship -- which he has often called the best job he ever had -- were private law disputes between private parties: a guest sues a host for reckless driving; a businessman sues a manufacturer for failure to deliver 400,000 pounds of aluminum; a patient sues a doctor for $15,000 worth of mental anguish after unhealed burns; and so forth. (Llewellyn devoted an entire appendix in The Common Law Tradition to 1958 cases from the New York Court of Appeals.) In cases like these, judges are expected to "do justice" and to "make the law," updating old legal principles to meet changing circumstances.
But Supreme Court justices play a very different role. Their most important duty is to interpret the Constitution, not to find pragmatic solutions to disputes between private parties. They are authorized to strike down the acts of democratic legislatures only when the acts conflict with the text and history of the Constitution, not with the justices' sense of equity and good policy. And it is worth noting that previous attempts to apply common law techniques to constitutional adjudication have raised serious questions of democratic legitimacy.
Llewellyn, for example, was a disaster as a constitutional theorist. In a 1934 article, he compared judges who focus on constitutional text and history, modestly averting their eyes from "real life," to "some Victorian virgin tubbing in a nightgown." And the ignominious culmination of his constitutional realism was his opposition to Brown v. Board of Education, which he thought insufficiently sensitive to settled social practices. In "What Law Cannot Do for Inter-Racial Peace" (1957), Llewellyn argued "that the process of having `Other' kinds of folk, `Different' folk, `Outsiders,' in the team of your working outfit is a slow process." He then offered an ugly cost-benefit analysis of the comparative social tension that might result from desegregating hotels, restaurants, bars, beaches and schools. Llewellyn's blinkered realism shows the dangers of entrusting constitutional interpretation to justices who are inclined to balance constitutional principles against their own pragmatic sense of what society can bear.
Would Cuomo, steeped in common law pragmatism on the New York Court of Appeals, be such a justice? His answer to the question about capital punishment is not reassuring. Instead of focusing on the textual and historical evidence that the people who ratified the Eighth Amendment, and the people today, never intended to ban the death penalty in all circumstances, Cuomo wants to be pragmatic: "I would need to know the facts, I would need to know the particular circumstances.... You need to practice law for a little while." Certainly, facts and circumstances are relevant to every death penalty appeal; and there is a serious argument that capital punishment may be unconstitutional in practice, if not in theory, because it is administered against blacks much more frequently than whites. But unless Cuomo can unequivocally reject the position of Thurgood Marshall and William Brennan -- that capital punishment is, always and everywhere, a form of cruel and unusual punishment -- it is hard to be confident of his ability to separate his moral judgments from his constitutional ones.
The conversations also raise concern about Cuomo's temperament. Like Antonin Scalia, he has the manner of an intellectual bully; and his combative debating style, with its barrage of legalistic -- and at times sophistic -- distinctions, runs the risk of alienating those who are otherwise inclined to be sympathetic to his arguments. As Scalia's experience shows, bullying is the surest way to drive away the cautious swing justices, Sandra Day O'Connor, Anthony Kennedy and David Souter. If Clinton is genuinely concerned about building a new majority, he might do better with a less volatile personality.
It is not clear, finally, that Cuomo is prepared to carry out the overriding tasks of the next justice: challenging Scalia on his own terms, and changing the terms of debate for the entire Court. (See "The Next Justice," TNR, April 12, 1992.) Even before he issued the same un-Shermanesque disclaimers about the Court that he had indulged about the presidency, his candidacy raised a series of doubts. With his hypercombativeness, hard-headed pragmatism, legalistic intelligence and lack of overriding vision, ironically, Cuomo might still become a justice, and in the manner of Byron White. More eloquent, warmhearted, charismatic and liberal, presumably, but another lonely realist in the end.