What I learned from a political pro turned federal appellate judge

If you were a political insider during the 1960s the name Donald R. Ross would be well-known to you. Returning from WWII as a war hero, Ross became the youngest US Attorney in the history of Nebraska. Thereafter, he climbed the ranks of national Republican politics reaching the peak of power after the defeat of Goldwater. Vice chair of the RNC, and the person who ran the 1968 Republican National Convention, Ross was the consummate political pro when President Nixon was elected.  As an intimate of Senator Roman Hruska, the ranking member of the Judiciary Committee, Ross was soon appointed to the seat on the 8th Circuit that Harry Blackmun vacated when Blackmun went on the Supreme Court.

I had the great good fortune to serve as Judge Ross’ third law clerk. He became one of my two mentors–his brother-in-law, Ed Cook, later to become my law partner, became the other. Suffice it state that I revere Judge Ross, and the following example illustrates why that is so.

Despite the fact that Ross had very strong views about politics, when he became a judge I never once saw the slightest evidence that his decisions were motivated by politics or anything of that kind. Thus, in 1996, when the Clinton-Whitewater-Lewinsky-Paula Jones scandals and legal matters were raging, a dissent authored by Judge Ross surprised a lot of the judge’s Republican friends and associates, but it did not surprise me.

The case was Jones v. Clinton, 72 F. 3d 1354 (8th Cir. 1996) (despite the possible disruption of his official duties, holding that, during the term of office of the President of the United States, the President could be required to defend a private civil suit, including engaging in discovery, for acts the President allegedly committed prior to becoming President), aff’d Clinton v. Jones, 520 US 681 (1997).

Each of the three very distinguished judges sitting on the 8th Circuit panel had been appointed by Republican Presidents. Judge Pasco Bowman, a brilliant judge and often mentioned as being on the short list for the Supreme Court, wrote the majority decision. Judge Bowman explained that “the President, like all other government officials, is subject to the same laws that apply to all other members of our society.” He thought that case management techniques could be employed to avoid interfering with the duties of the President.

Judge Ross dissented. Judge Ross was worried that if a President could be sued during the President’s term of office, and subjected to the directions of a federal district judge during the course of the litigation, the office of the President would be harmed. Thus, he reasoned that unless exigent circumstances could be shown, all private actions for damages against a sitting President must be stayed until the completion of his term. Judge Ross saw no reason why the stay would prevent Jones from ultimately obtaining an adjudication of her claims.

The power of the Ross dissent was evidently such that Ross’ fellow Nebraskan (and successor) C. Arlen Beam felt compelled to file a special concurrence directed at the Ross dissent. Among other things, Judge Beam reasoned that the dissent’s concern about judicial interference with the functioning of the Presidency was “greatly overstated.”

Like Ross before him, Beam had been counsel to the Nebraska Republican Party. Beam too was a very heavy hitter in Republican circles prior to his appointment. While I have no inside knowledge on this, I am betting sparks were flying between Omaha and Lincoln where Judges Ross and Beam had their respective offices.

Judge Ross’ dissent in the Clinton case is a good example of a political pro turned judge knowing and internalizing the difference between law and politics.*While he taught his law clerks a lot of things, that lesson was among the most important. There is a post script, but I will write about that tomorrow.

RGK

*To be perfectly clear, I do not mean to suggest in any way that Judge Bowman or Judge Beam were motivated by politics.

2 responses

  1. Rich, I thought Judge Ross has it quite right in his dissent. The original sin was Morrison v. Olsen, in which the Supreme Court held that a special prosecutor was not an “officer” of the U.S., but rather an “inferior officer,” who could be appointed by someone other than that President (in this case a special panel of the D.C. Circuit) and removable only for cause. Scalia — who once worked in the Executive Branch — predicted in dissent that it would lead eventually to a political meltdown, which it very nearly did in the shakeout of the matter you reference. Laws written to address a peculiar problem that happened in the past (in this case Watergate) almost always tend to be loaded with unintended consequences.

    But to your main point, I think that good judges do this. I have it on good authority that AMK walked several laps outside the Supreme Court building before the Bush v. Gore decision was issued attempting to imagine whether he’d vote the other way if the parties were reversed. He ultimately concluded that whether it was Bush or Gore bringing the suit, he’d vote the same way. Best, Pat.

  2. Pat,

    As usual, you focus on the key. Always reverse the situation so your guy is in the hot seat. More on that tomorrow.

    As an interesting side light, Judge Ross was very well acquainted with all the key players in Watergate. I clerked for him during Watergate and that was an education itself.

    Judge Ross understood far better than most how the office of the Presidency could be abused both by the President and those who served the President. Even so, Ross venerated the structural integrity of the office of the Presidency as well. As a former US Attorney and a former national political power broker, he was uniquely well qualified to weigh the trade offs that the Jones v. Clinton case called upon the judges to make.

    All the best.

    RGK

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