LISTENING LIVE

I'm listening to the testimony at Senator Cornyn's hearing. The official notice is here, and you can listen here. Links from How Appealling.

The editorial by Cornyn (also linked by HA), in which he sets out the rhetorical groundwork for this hearing, gives me pause, though. Here's one key paragraph:

The essence of our democratic system of government is beautiful in its simplicity: Majorities must be permitted to govern. As our nation's Founders explained in Federalist No. 22, "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail." And as the Supreme Court has unanimously held, our Constitution is premised on the democratic doctrine of majority rule.

If the purpose of the hearings is to create pressure for majority rule in the Senate with respect to judicial nominations, I suppose it's not that objectionable as such, even though it's clear where the partisan gains here lie -- and it's reasonable to question whether Cornyn is truly devoted to the principle of majority rule or to the immediate partisan gains to be had. It's an odd paragraph nonetheless. (In the hearing, Cornyn also just referred to "the Constitution's doctrine of majority rule for confirmation of judges.") First of all, if you look at the argument in Federalist 22, you'll see that Hamilton is attacking the very kind of representation of states that was the organizing principle of both the Confederation congress andthe Senate itself. You can certainly contain the idea of majority rule with reference to traditions and constitutional text, but that's a pretty fancy move and it's not clear what the outer boundaries of that move are from the outset. More fundamentally, the "essence" of our constitutional system is not that "majorities should be permitted to govern." Cornyn is rolling out the big guns. But if that's the essence, then what about the Senate, the electoral college, and all the elaborate procedures to check majority rule and to make legislation difficult? [By the way: these are the kinds of things that Robert Dahl, for example, is consistent enough to argue are actually undemocratic, as his recent book notes. Is Cornyn going to go that far? If not, why not?] Cornyn has overreached here, as (I hope) anyone who has taken GOVT101 will know. What I fear is up here is an attempt to enlist as many arguments as possible in favor of an attack on the very narrow practice of Senate Democrat filibuster of Bush's current judicial nominations.

Another thing is odd about Cornyn's piece. Look at how he characterizes Senator Schumer's proposal:

Sen. Charles Schumer advocates an overhaul of the nomination process by eliminating the president's appointment power and instead giving President Bush and Sen. Daschle "equal roles in picking the judge-pickers."

This is a weasel argument and Cornyn should know it. As far as I understand Schumer's argument, he wants to set up a process that would provide for consultation between the Senate and the President. Schumer's proposals are apparently so threatening to Cornyn that he can't even characterize them fairly. And it seems to me that the source of the threat is clear: Schumer's position all along has been that judicial ideology is an intelligible concept that is already being used in the nominations process, and that the best way to deal with this is to talk about it openly and devise proposals to provide for explicit ideological balancing. Schumer's position would take away one of the powerful rhetorical weapons in the Republican arsenal: their ability to claim that they only care about the "rule of law" and are only trying to rip judicial power away from liberal judges who habitually overreach. The rule of law is important, but one needs to be attentive to how underdetermining the reference to the "rule of law" is (as Jack Balkin notes in a post -- permanlinks busted -- in reply to Lawrence Solum's post here).