MORE ON JUDICIAL SELECTION

Larry Solum and Rick Hasen gave very kind responses to my post on their debate on judicial selection. My basic point is that any formalization of the judicial selection process that doesn’t take into account electoral pressures is probably misleading. My response here is a bit long-winded and I'm especially subject to correction on my admittedly sketchy understanding of different interpretive approaches. I'll admit that cross-disciplinary dialogues are especially exciting for me as well.

My assumption is that Senators and Presidents define their interest and preferences narrowly. There are probably some differences in nuance, but both Senators and Presidents want to be reelected. The expected utility of any decision that they take will be the extent to which it increases their electoral chances. Any myopia in this process is due to the short time frames of the electoral cycle. I’m not really sure how long-term time horizons even have a place here, especially given the fact that the nominations process is a continuous drama. A strategy of politicization needn't assume long-term control because the immediate electoral benefits of politicization are quite high.

Senators have politicized the nominations process because they expect the politicization to further their electoral chances. This is certainly true of the President as well. Bush, at least, ran on an explicitly partisan agenda with respect to the nominations process. Democrats have been obstructing Bush’s choices not because they are still sore over the treatment of Clinton's nominees; they’re doing so because of interest group pressure that they fear will make itself felt at the polls.

The use of formalist rhetoric, at least, is itself a political act. Listen to Senator Jeff Session's speeches. They sound formalist: Estrada will "uphold the law" and he has great qualifications, so he should be accepted. But Sessions's obvious understanding of what “upholding the law” means is realist. His constituents, or at least his attentive ones, know that as well. Sessions has been explicit about what he wants from courts: rulings in favor of free exercise protections for Christians; rulings in favor of an Establishment Clause understanding that benefits Christians; rulings in favor of property owners who are battling “unelected bureaucrats” in the EPA. Formalist rhetoric (“upholding the law”) has become codeword for a Republican realist jurisprudence.

It could be that I'm not quite clear on what neoformalism actually means. But it seems to me that attempting to "follow the law" in a minimalist fashion, in and of itself, even if that means tethering oneself to dominant norms in the judicial culture, will not produce non-political decisions or decisions that evade persuasive charges of realism. There are enough layers of precedent and principle on contentious political issues that judges have substantial freedom to employ the tacks they like for other reasons. Perhaps the legal culture has produced neutral descriptions of the core meaning of certain rights, allegiance to which would mean neoformalism. My own scholarly limitations shine through here. . .but I haven’t seen much consensus in the legal culture on the issues that interest groups pressure Senators and Presidents about. (As a side note, I mistook Rick Hasen’s “broad equality right” to be a larger category -- sorry about that! -- and I defer to his claim about redistricting.)

My central claim is this: Even if we could say what an unambiguously formalist decision would mean on abortion, sexual privacy, disestablishment, free exercise, guns, or takings (to name a few), Senators from both sides of the aisle will not be better off if they pick judges who really are formalist. Powerful interest groups such as the NRA and NOW can make a credible threat that they will punish Senators who approve of judges who can be expected to rule against their interests and constituencies. Unless neoformalism means a perfectly random distribution of burdens among interest groups, Senators will still feel the heat.

Larry Solum is right to claim that Republicans claim that neorealism is attractive to Democrats because they seem to care more about responding to their constituencies than upholding the rule of law. I can't see any reason to refrain from the same charge against Republicans, however: think about guns, or affirmative action, or several areas of criminal justice. My guess is that Chuck Schumer advances an explicitly realist account of appellate judging because he wants to expose the (Sessions-esque) Republican realism that masquerades as formalism. Maybe his hope is that he can shame Republicans into reinvigorating the informal agreement that has governed selection for the DC Circuit, for example: explicit ideological balancing. Republicans are on a roll, however, and they’re going to push their own political judicial choices as far as they can, because they believe that it will be electorally useful for them to do so.

In the design of bureaucratic institutions, members of Congress often opt for one of two strategies: they seek an explicitly ideological balancing in membership, or they seek to hobble the institution so that it can’t make decisions they don’t like. I think I recall hearing David Mayhew refer to the last strategy as “building a camel.” We’ve seen both of these strategies in the Senate in the past few terms. They are both sensible strategies, but they also both require an explicit recognition that the fear of ideologically undesirable outcomes trumps the supposedly neutral qualities of procedure or expertise. Attempts to influence judges through changes in the legal culture, as in: pushing them toward a new interpretive approach, would be like recommending that bureaucrats just “do their job well” or “be good, neutral bureaucrats” and hoping that this satisfies members of Congress. It’s too late in the life of the appellate courts to see that as a realistic suggestion, in my opinion, although I am, as always, willing to be persuaded otherwise. Proposals like Bruce Ackerman’s -- copy Germany by ditching lifetime tenure and crafting a supermajority rule to weed out the extremes -- have essentially the same quality as the strategies that govern the design of bureaucratic institutions. His approach would require an explicit recognition of the existing realism in both parties’ approach to judicial selection as well, but I think that’s the most profitable long-term route.

I realize that there is a tension between the narrow "electoral connection" claims I make at the beginning and the more complicated "politics of bureaucratic structure" claims I make at the end, but I can't figure out how to bring them into harmony tonight. . .plus, I've still got Bush's speech ringing in my ears, begging for my attention. "48 hours."