According to Wikipedia, there is reason believe the phrase lame duck “… was coined in the 18th century at the London Stock Exchange, to refer to a broker who defaulted on his debts.”Under that definition the Bush Administration is no lame duck. Far from defaulting on its political debts, the Bush Administration is paying them off with interest. As Elizabeth Kolbert reports in the November 25 New Yorker, the Bush Administration (presumably including persons licensed to practice law) is busy drafting federal regulations that delight and will benefit major financial contributors.
The Bush Administration has shown a unique (situational, dogmatic and ideological) approach to law and law making. Quick to criticize unelected activist federal judges for law-making, the Bush administration has re-defined law to mean whatever the executive branch declares it to be. Whatever criticism, fair or unfair, that Bush may have made of federal judges, judges operate in public. Their decisions are part of an open process. Their reasoning is available for all to see and is subject to appeal. Such is not the case with the scriveners churning out last minute regulations. As they crank out regulations, they are safe from public accountability and secure in the knowledge that they are simultaneously working on their resumes.
It might be a mildly interesting exercise to consider whether a plausible argument could be made that the lawyers who write regulations of the type Kolbert describes are violating legal ethics rules. My guess is that the answer is “no.” But, carrying out a client’s orders, while not necessarily unethical, does say something about the client’s lawyer. The notion of independent judgment – that a lawyer ought not merely to follow his client’s instructions and that he has a professional obligation to offer objective advice and on occasion withdraw from representation – does not receive much public emphasis. The public simply does not know what lawyers – especially junior lawyers in the Bush White House – say or do. That is as it should be.
But, we think that the name of every lawyer (or anyone else) who is involved in undemocratic lawmaking of the kind Kolbert describes ought to appear on and be easily traceable to the regulations on which they worked. The process ought to be transparent. The people involved ought to be identified. There ought to be accountability from the level of those who put pen to paper on up to the President especially for lawyers because they are using a government license to create public law. The public should know the names of its lawmakers.