Justice Department and FDA Actions on Abortion Pills Discussed Amid Legal Uncertainty
When Justice Becomes a Patronage Office
The firing of Seattle’s top prosecutor, amid a wider partisan remaking of the Justice Department, treats the administration of justice as spoil of victory rather than sovereign duty—and the country will pay in ways its authors prefer not to count.
A federal prosecutor in Seattle has been dismissed, though he was not a creature of the executive but had been selected by a panel of seventeen judges. The legality of such a removal, I am told, is contested even among the government’s own lawyers. At the same time, observers within that system describe “a larger sea change” in the Justice Department, in which those appointed to high office are chosen for their explicit partisanship and their willingness to involve the president in the department’s daily operations. Here, in a single episode, one sees both a disputed power and a very clear purpose: to bend the machinery of criminal justice closer to the hand of one political interest.
When I wrote of the duties of the sovereign in the Wealth of Nations, I placed the “exact administration of justice” alongside defence and certain public works as a primary obligation, not an ornament. Courts and prosecutors do not sell their services in the market; their product is an impartial rule of law, and it profits every subject though no private undertaker could be repaid for providing it. To make such officers dependent on the favour of a transient political leader is to convert a public trust into a private tenure, and to turn that which should restrain power into another instrument of it.
The defenders of such removals will talk of efficiency, of the need for a unified team, of aligning prosecutors with the elected programme. They will say that law is uncertain, that policy must guide discretion, that the president merely ensures his laws are faithfully executed. Yet, as I argued in The Theory of Moral Sentiments, we judge actions not by the excuses of the actor, but by what the impartial spectator, fully informed and disinterested, would feel. That spectator might allow a leader to replace a negligent officer; he cannot, without indignation, behold the steady substitution of partisan loyalists for independent ministers, especially where liberty or property is at stake.
The present sea change is not confined to personnel. In another hearing, a nominee assured legislators that health authorities were “for the first time in a decade” seriously examining the safety of certain abortion pills, though many studies already attested to their safety and effectiveness. The same circles invoke old statutes to portray the mailing of such medicines as criminal enterprise. Here is a pattern: when the evidence of science or the settled practice of law stands in the way of a desired policy, the evidence is disparaged, the law is strained, and partisan narrative is dressed up as legal necessity. It is not the particular medicine, but the method, that should alarm a prudent onlooker.
Those who contrive such changes enjoy highly visible gains. A president secures subordinates who will not thwart him; legislators win symbolic victories before their supporters; advocates advance causes dear to their own faction. The costs, by contrast, are silent, slow, and dispersed. Every honest prosecutor, observing a colleague publicly sacked, learns the new rule: do justice, but only so far as it offends no powerful friend. Every ordinary citizen, watching law twisted to meet a passing passion, learns a darker maxim: that there is one rule for the connected and another for the rest. Thus the very system meant to protect the weak becomes, almost imperceptibly, another weapon for the strong.
In my own time I warned against the man of system, who imagines that he can move men about the great chess-board of society as if they were pieces without will of their own. The new partisans of justice are a species of that character. They fancy that, by placing loyalists in every post, by stretching old enactments to new ends, by disciplining any officer who resists, they can secure a more virtuous nation according to their own lights. They forget that other factions will inherit the same precedents; that today’s weapon of reform is tomorrow’s weapon of revenge; and that when justice is once believed to be political, even the most righteous prosecution will be suspected as persecution.
Self-interest, operating under known and impartial rules, can—as I once observed—lead men, as if by an invisible hand, to promote the public good. But when the rules themselves are bent for the convenience of a party, self-interest no longer coordinates; it corrodes. Prosecutors seek advancement by pleasing power, not by serving law; citizens seek safety through connections, not through right; the labouring poor, who have least influence and most need of protection, discover that the law which falls heavily upon them is strangely delicate when it meets the great. A state may survive many follies of commerce, but it cannot long endure the systematic corruption of its justice.
From the works cited
- The Theory of Moral Sentiments — Judge conduct by the impartial spectator: what would a well-informed, disinterested observer feel about this action?
- An Inquiry into the Nature and Causes of the Wealth of Nations — The sovereign's three duties (defence, justice, public works and institutions) and the four maxims of taxation: equality, certainty, convenience, economy.