REHNQUIST VERSUS GREENSPAN?

I listened with interest to much of Senator Cornyn's hearing yesterday (although I wasn't there -- see the blow-by-blow account by Lawrence Solum here) and have the following impressions:

• It was clearly an effort to generate support for the principle that simple majority rule should be the standard by which judicial nominations are judged in the Senate. Thus, as I think you can see from Cornyn's op-ed piece yesterday, it was an attempt to engage in constitutional analysis for the purposes of breaking the Senate Democrats' filibuster. Fein's testimony (I think it was him) that put the current struggle in the context of a future Supreme Court battle was on the mark.


• Nonetheless, because the testimony was pretty balanced, it was also very informative and not as one-sided as I had feared simply looking at the testimony list.


• The unconstitutionality of the entrenchment of Rule 22 argument is a bit of a nonstarter, in my opinion, although it will probably generate some heat and some interesting argument. The Blackstonian argument that current parliaments can't bind future parliaments is certainly an interesting argument and it seems to have fascinated a few people, but a few things are important here. If the Senate wants to change Rule 22 (which is old but not inalterable), let them go ahead and do it. Blackstone was arguing that the Senate can do just that if it wants to; I can't see how the Blackstonian argument can be made into a viable attack on Senate rules. And Schumer was not too far off in thinking that an attack on the constitutionality of Rule 22 also leads to an attack on other rules that are not constitutionally mandated. But perhaps I'm missing something here.


• Marcia Greenberger needs to chill out. She was effective at times but also a little too rude for the hearings. I put in these comments to indicate that I can criticize people whose views I like.

Most importantly, I think that the hearing solidified my sense that some more creative thinking is necessary with respect to courts, partisanship, and balance. This is why I like Schumer's proposal.

If you're a political scientist, you're entitled to ask the following question: What really differentiates the DC Circuit Court from the Federal Reserve Board (formal distinctions aside)? Subject matter jurisdiction, constraints on the rulemaking power, and explicit ideological balancing in the membership. But the Fed is also classed, rightly, as an "independent regulatory agency." If you were designing a body that was intended to come to binding decisions about politically contestible issues (in full knowledge of the existence of deeply held views that differ, and the grave danger of ideological capture, either functionally or because of the need for public confidence, or because -- most interestingly perhaps -- you want to be able to disassociate yourself from unpopular decisions made by the body), you probably would choose something more along the lines of the Fed and less along the lines of an Article III court. Where we really need to be looking for models of independence and a focus on adherence to a genuine sense of dedication to duty is probably the independent regulatory agencies, not the federal courts. Greenspan is probably more "independent" than Rehnquist, if "independent" means freer of the tendency to decide based on results predictable with knowledge of some kind of marker like a party label. And anyone who ran for the presidency with a strategy of nominating something like "interest rate reducers" to the Fed would be guilty of injecting partisanship into the situation. I'm still impressed with how willing many analysts are to give Bush a pass on the question of his behavior with respect to the ideologicization of the judiciary.

I'm also reading Cass Sunstein's Designing Democracy (another political science - law crossover thinker [in addition to Ackerman, I mean; I'm not trying to class myself with Sunstein]). Cass Sunstein's discussion of group polarization shows one reason why explicit ideological balancing is a sensible straLike. Like-minded people who engage in deliberation will predictably reach more extreme results than unlike-minded people who engage in deliberation. That's the intuitively appealing reason for something like Schumer's approach. But, again, there is a rhetorical asymmetry in the debate because Republicans believe that they can win on appeals to "the law" and not to "politics," and perhaps they really believe, privately, that this distinction does all the work for them. Nonetheless, they are simply wrong on this score. Reasonable people who care about the law can disagree on what it requires. These disagreements track -- imperfectly, but nonetheless in reasonably predictable fashion -- broader partisan differences. Perhaps parties pick up on the judicial differences, perhaps judges pick up on partisan differences. But however it works causally, the differences are there and they do matter. Given that fact -- something that probably the framers did not really believe was true -- it makes sense to engage in explicit ideological balancing to the extent possible. That's what has happened in the design of independent regulatory agencies, and that's probably what should happen in the design of any new procedure -- if one is needed -- to nominate federal judges. The filibuster would seem to be a good thing under this line of thinking because it tends in the direction of more debate and more input from the opposition party. The blue slip rule, however, might not be so good, although context and motives matter.

MORE: On rule 22, let me just add that if Republicans really want to change it, they should go ahead and do so, and then they will never be entitled to complain when a majority Democratic Senate does things that they dislike intensely. The strategy might make sense politically for Republicans, but I'm sure they also realize that all the population gains in the conservative south and southwest that have led to Republican gains in the House will not help them to hold on to the Senate, and with a very close partisan balance in the Senate currently and for the foreseeable future, a change in Rule 22 would make the Senate look more Blackstonian than they might want.

MORE: In my haste to get the above post out, I wrote something that seemed to imply that judges don't have an "adherence to a genuine sense of dedication to duty." That statement was not intended as an attack on judges. Instead, what I meant was that if you're designing an institution that will produce ideological balance in opinions, you should look to the design of independent regulatory agencies. If non-partisanship is a duty of judges, then what is needed are institutions that will constrain partisanship explicitly. Article III courts don't do that all that well.