DOWNWARD SPIRAL OF POLITICIZATION?

Josh wants to know what can be done to "stop" the downward spiral in the politicization of the judicial confirmation process (the term, and its defense, most clearly explained by Lawrence Solum; go to his site and follow your nose -- you won't be disappointed!).

My responses:

• Do nothing. There is no crisis; the idea that the nomination process is broken is at best a mischaracterization and at worst a Republican complaint (that they are now suddenly discovering after engaging in obstructionist tactics under President Clinton). Most judges are being confirmed. No serious damage is being done to the judiciary. The political incentives -- razor thin partisan balance, increasing ideological polarization, and the plum prize, being able to stack the judiciary -- guarantee a public battle, but there's nothing really wrong with that. In fact, it might be good, since it highlights the long-term political impact of judicial nominations, although the effects of judges should not be overestimated.


• Ditch lifetime tenure. That will remove the main reason for getting excited about nominations, namely, the possibility of entrenching party preferences -- and dislodging those entrenched by previous administrations. Lifetime tenure is a bad idea when judges are not impartial on burning public issues but are instead articulate defenders of recognizably partisan ideologies (even if they are refracted strangely through the medium of the judicial craft). An unlikely prospect, however, since the hurdles to formal constitutional innovation are quite high and there's not much movement on this issue. It would also be resisted by federal judges and law professors who could muster impressive reserves of cultural capital.


• Set up a bipartisan commission to select nominees. This is essentially Schumer's proposal (or a version of it) and it has been rejected (wrongly in my view) as unconstitutional by the administration and by the newly minted defender of GOP constitutionalism, Senator John Cornyn. The partisan incentives aren't right here, either: commissions are more likely to be created when (a) unpopular decisions need to be taken (as in the Postal Rate Commission), or (b) some kind of bipartisan approach is politically popular (as in the election reform commission created after the election debacle in 2000). Neither of these conditions are met here. Republicans love to bash the judiciary for being too "liberal" and love to nominate ideological conservatives whom they then describe as simply "following the law," which their base knows to interpret against the background of current GOP critiques of civil rights protections, abortion rights protections, environmental regulations, and so on. Democrats also love to attack judges who are extreme according to their constituencies, although they have an incentive to engage in bipartisanship if they thought they could have more influence over the process that way. But there is really no political incentive for the parties to agree on a bipartisan approach.