Last night, in the privacy of my own room, I wrote a long essay about Estrada, the Claremont Institute article I linked yesterday, Cass Sunstein's TAP article, and the 1798 Sedition Act controversy. I can sum up the point in a few sentences: There is an asymmetry in the approach of Claremont to the Estrada nomination that is similar to the one Sunstein describes in Republican judicial court-stacking plans as a whole. Eastman and Sandefur take the supposed unconstitutionality of the New Deal to the next logical conclusion: the Democratic party itself is based on unconstitutional claims, so when Democrats attempt to block judicial nominees they are engaging in a doubly unconstitutional act, namely, they are obstructing and delaying the President's nominees and doing so on the basis of unconstitutional positions. When Republicans block Democratic court nominees, however, they are just engaging in fidelity to the correct constitutional understanding; Republicans who didn't block "liberal" nominees could be accused of violating their oath to "uphold the Constitution."

We've seen this before, most notably with the Sedition Act controversy in 1798, when Federalists advanced a constitutional position that was based partly on controversial, high-level political and theoretical differences with Jeffersonians. The upshot of the Federalist position was that they claimed the highest level of constitutional justification for what revealed itself to be blatant partisanship, namely, the attempt to jail and otherwise put out of business Jeffersonian publicists and political figures.

Eastman and Sandefur are more traditionally American than they probably realize. They're also a bit loony, in my view. Well, more than a bit.