SOLUM ON JUDICIAL SELECTION

In the middle of the continuing drama of the Democrats' high-profile fight with Bush and his party over judicial nominations, Legal Theory blog tries to bring some clarity to the overall situation. Read the latest in a series (internally linked) here.

For Solum, there are two basic solutions to the judicial selection controversy: what he calls "moderation" (meaning the selection of politically moderate judges) and "neoformalism" (the selection of judges who have "judicial virtues"). Solum is interested in the predictable long-term consequences of the selection of either type of appellate judges, and his argument has a strong normative component.

Take a look at his argument. I'm still interested in the question primarily from the side of political incentives of members of Congress, the kinds of rules necessary to produce a normatively desirable and practical nominations process, and the analogy with bureaucratic design, although I agree with Solum that normative orientation is imperative. And I would want to specify in more detail what kinds of judiciary we'll get with either of Solum's categories.

If you want to read one of the best political science papers I've read in the past few years that bears on this subject, go to Perry and Powe's The Two Parties' Constitutions, presented at APSA last year. Particularly if you're intrigued by Solum's concept of the "political center" on the court and how that would play itself out in political life, you should think about this paper's claim that the political positions that party actors would tolerate as "the center" on the courts does not match up well with what "the center" means in legal culture terms.