Volume 53, Number 8 · May 11, 2006
What Lincoln Said
By Mark Tushnet, Reply by Ronald Dworkin
In response to 'The Strange Case of Justice Alito': An Exchange (April 6, 2006)
To the Editors:
Charles Fried ["'The Strange Case of Justice Alito': An Exchange," NYR, April 6] offers an incomplete quotation from Abraham Lincoln. According to Professor Fried's Harvard colleague, the late Paul Freund, Lincoln in considering the appointment of Salmon P. Chase to be chief justice in 1864 was concerned about Chase's views on "what has been done in regard to emancipation and the legal tenders"—interestingly, both issues about national power during wartime emergencies—not Dred Scott. After saying, as Professor Fried reports, that "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it," Lincoln ended, "Therefore we must take a man whose opinions are known."
Taken in full, Lincoln's statement seems to support Professor Dworkin's interpretation of what White House interviews with Judge Alito were designed to accomplish rather more than it does Professor Fried's interpretation.
Mark Tushnet
Professor of Law
Georgetown University Law Center
Washington, D.C.
Ronald Dworkin replies:
I was unaware that Fried had omitted what seems a crucial part of Lincoln's remark about Supreme Court appointments. I agree with Professor Tushnet that the full quotation undermines the use Fried sought to make of it.
