When Justice Becomes a Bargaining Chip

The immediate scene is briskly drawn. A president proposes an “anti-weaponization” fund; a senator, who had raised no earlier objection to this contrivance, now withholds his support for the president’s chosen attorney general, and does so, we are told, after the president favours a rival in the senator’s party contest. The sovereign’s chief law officer becomes collateral in an intra-party quarrel; the fund, which ought to be judged on its institutional merits, is instead a token in the higgling and bargaining of political men. When appointments to administer justice are treated thus, the whole people are invited to see the law not as an impartial shield, but as a move in a very small game.

In my inquiry into moral sentiments, I supposed an impartial spectator who, informed of the facts, judges our motives and conduct with cool concern. That spectator, looking upon this scene, would first ask whether the senator’s new scruples flow from a sober reconsideration of the fund, or from resentment at the president’s electoral interference. For a statesman to oppose a measure today which he passed over in silence yesterday, and to do so at the precise moment when his own honours are in question, is not a crime; but it is the sort of coincidence which, in private life, excites a modest man’s self-suspicion. To resist patronage may be praiseworthy; to resist only when one’s own patronage is threatened has a different flavour.

What little is known publicly of the fund is its announced purpose: to prevent the “weaponization” of government. The name flatters liberty, as the titles of monopolies once flattered plenty. Yet, as I argued in the Wealth of Nations, the first duty of the sovereign is the impartial administration of justice. If such a fund would, in truth, protect officers who do their duty without fear or favour, then it may belong to those public institutions which, though not profitable to any individual, may greatly benefit society. If, on the contrary, it serves chiefly to shelter certain parties from lawful inquiry, or to intimidate independent magistrates, then it would be nothing better than a subsidy for impunity, purchased with other people’s money.

Here the economist in me must plead ignorance. We are not told who would pay into this fund, who would receive from it, or by what rules claims would be decided. Without such particulars one cannot trace, as one ought always to do, the visible benefit to its direct recipients and the unseen cost to the dispersed taxpayer or litigant. Every new public purse has its suitors; and, as I once observed of men of the same trade, so men of the same faction seldom meet without contriving some advantage to themselves at the public expense. A fund erected in the name of the people may, under dexterous management, become a very pretty engine for the security of incumbents and the chastisement of their enemies.

Yet if the fund’s true character is still obscure, the character of the bargaining over it is not. The senator’s weapon is his power over confirmation; the president’s, his influence over party electors. Each uses what he has, and each complains when the other does likewise. This is not peculiar villany; it is the ordinary working of self-interest under the incentives your constitution has supplied. In The Theory of Moral Sentiments I never supposed men to be angels; I supposed them to seek preferment, to resent injuries, to repay favours. The question is not whether such motives exist, but whether your institutions so arrange them that a man’s private advantage is commonly found in promoting, rather than in thwarting, the impartial execution of the laws.

By that standard, the spectacle is disquieting. The office of attorney general belongs to the sovereign’s second duty in the Wealth of Nations: that of exact justice. When this office is made hostage to quarrels over campaign endorsements or to manoeuvres over a still-murky fund, the public learns to regard the law as the servant of party, and the law officers as retainers in some great lord’s household. The labouring poor, who possess little influence but their obedience to the law, have most to lose when its principal guardians are traded like seats and contracts. It is they who suffer when prosecutions are stayed or hurried for reasons unintelligible to any conscience but that of party interest.

Some will say that such obstruction is a necessary check; that denying support today may purchase better policy tomorrow. This argument has weight where the object is plainly the public good, where reasons are candidly avowed and consistently held. But when a man discovers his objections only at the moment they serve his electoral convenience, we are licensed to suspect that we are witnessing not a check, but a choke. The impartial spectator, observing the timing, the silence that preceded it, and the private stakes involved, would withhold his praise. He might even conclude that, in the great chess-board of human society, the pieces have here been arranged not for the safety of the realm, but for the safety of the players.

I would therefore suspend final judgment on the fund itself until its structure, its paymasters, and its beneficiaries are plain, but I cannot with the same ease suspend judgment on the method of contesting it. To make the administration of justice a mere bargaining chip in a quarrel over party patronage is to treat the constitution as so much small change. In such a traffic, the invisible hand does not gently guide private interest to public good; it fumbles for advantage in the dark, and knocks over the candlesticks by which the rest of us see our way.