JUDICIAL SELECTION RARIFIED?

The discussions of the pitfalls of a politicized judicial nominations process at Lawrence Solum's Legal Theory Blog are interesting, but have an aura of unreality about them. See the last post here and scroll down for earlier posts. Note in particular Solum's recommendations, which seem to me to be an academic version of the advice given by the Washington Post editorial pages: "be nice." This is not to slight Solum's intricate analysis, though. I do think that his attempt to model the judicial selection process as a prisoner's dilemma overestimates the gains that the political parties would get by nominating what he calls formalist judges. A formalist rhetoric, as it would be likely to play out in practice, probably is more persuasive to Republican constituencies anyway, and senators need to be able to defend their judicial choices to existing constituencies. Plus, Republican "formalism" isn't really formalist anyway. In addition, the political gains to be had by court-bashing, particularly in the south, should not be understated. So I'm skeptical of the prisoner's dilemma formulation, as I said before.

By academic training as well as sentiment I find Rick Hasen's argument more persuasive, at least to the extent that he argues that the political nature of Supreme Court judging cannot be denied, and any change to the nominations process should take that into account. This is basically Chuck Schumer's position as well. Is it surprising that a Senate Democrat is pushing the "Court is political" argument? Not really.

Hasen bases his case on his recent work on election law. Hasen also makes a recommendation to the judiciary that they should refrain from creating new, controversial equality rights and should instead leave that area of policy to the legislature. If your goal is to reduce the partisanship in the nominating process, this strategy probably would only produce minimal gains, though. And still the dilemma exists: do we really want to rely on legislatures to refrain from punishing gays and lesbians through sodomy laws? You can redefine the issue as one of privacy and avoid the "new equality right" problem, but that's a sleight of hand, really.

[Note: I'm not saying that you can't attempt to describe the nominations question in terms of game theory. I'm just saying that our assumption shouldn't be that cooperation in picking formalist judges is preferable to a mutual picking of political judges.]