SQUISHY CATEGORIES AND THE JUDICIAL CONFIRMATION WARS

[That last post was still a draft, but now it's complete: sorry!] Lawrence Solum's discussion of the role of preferences and perceptions in the selection of judges for confirmation is illuminating. Solum applies a simple model of preference along two dimensions (realism-legalism and left-right in political ideology) and then argues that one of the problems in the current confirmation battle is that Reps and Dems mistakenly evaluate the position of their opponents' respective judicial picks along the realism-legalism axis. What I would want to add to his chart is a somewhat churlish horizontal line and shaded box, like this:

There is certainly a point at which "realism" runs counter to the rule of law, but that point is not simply the point at which any amount of realism is present. There are rhetorical gains to be had by portraying the judicial picks of one's partisan rivals as counter to the rule of law (and perhaps perceptions really do matter here and the claims that a given judge is too realist may not be wholly strategic).

MORE: Lawrence Solum gives a kind response to my post, here, by modestly outlining a few conditions under which moderate realism can be consistent with the rule of law: where there is (1) a high degree of political or ideological consensus, (2) a high degree of judicial ideological / methodological consensus (around moderate realism), and / or (3) a history of formalist judging that can act to contain, I gather, the more extreme reaches of realist judging. The unstated but clear implication is that the judicial culture and political culture in the U.S., right now, do not fulfill any of these three conditions -- look, for example, at his post in response to one of Jack Balkin's recent posts, here. Solum seems to be making the claim that there is no dominant approach among judges -- indeed, the fracturing of judicial theory (2) seems partly to be the result of attempts to come to terms with the high realism of the Warren and Burger courts (3). As for (1), although it may be true that American political discourse typically runs along more narrow bands than, say, German or French political discourse, differences over abortion, gay rights, affirmative action, criminal justice, and other high profile issues should definitely count against a finding of widespread political or ideological consensus.

One of the important but subtle questions that divides neoformalism from neorealism seems to be the different narrative mood of their respective accounts of judging. Not to overdo it, but it seems to me that for neoformalists, neorealists are cynical, and for neorealists, neoformalists are naive. These seem like very basic categories to me, almost like Heidegger's "basic moods," and the respective positions are not that far off in their evaluations of each other: neoformalism is about judicial and political self-limitation after the fall (into realism, as it were), and neorealism is (often) about a hard-nosed approach to power, including the forms of judicial power that neoformalism wants to renounce.