THINGS I LIKE: UNSOLVED QUESTIONS

Southern Appeal recommends Brian Anderson's Opinion Journal piece on Senator Schumer (from the fine state of New York) and the "incalculable damage to our political fabric" that Anderson believes Schumer and his ilk have created by their approach to the judicial selection process.

Here's my outline of Anderson's argument:

1) In using private opinions and predicted (conservative) outcomes as criteria for his acceptance of judges, Schumer has disregarded both the Federalist and Senate history, which establish "integrity, intelligence and temperament, and faithfulness to the rule of law" as the only acceptable criteria for judicial selection. Bush's judicial nominees satisfy all of these criteria.

2) In embracing Schumer's view of the judicial selection process, Democrats have taken another fateful step on the Solumesque (Solumanian? Solumian?) "downward spiral" staircase.

3) Like Priscilla Owen, most Americans like parental notification laws; Justice Brown won handily in a retention election. Thus, neither are "outside the mainstream," as Democrats claim, but Democrats clearly are.

4) Liberals have pushed for an activist judiciary "for decades," while conservatives promote "originalism" as a means to counter judicial activism. Originalism threatens "the left" because it threatens "policy gains" that are not supported by majority opinion (see point 3).

5) Democrats attack originalism because they see it as ideological, but they attack originalism unfairly. Originalism does in fact threaten their policy goals, however (see point 4).

6) People should vote for Republican Senators in order to get around the restrictions on invoking cloture. Aside from allowing Republicans to confirm President Bush's judicial picks, a filibuster-proof supermajority in the Senate would restore the traditional standards of judicial confirmation (see point 1).

I've tried to reduce the piece to its argument, which of course makes it a little less interesting (and less colorful) than the whole, which is -- in my view -- an unfair attack on Senator Schumer and the Democrats. Frankly, I'm tired of these kinds of arguments because they start at the wrong end and never convince anyone of anything they don't already believe, but I suppose that's the point of publishing an editorial in Opinion Journal rather than trying to write a serious research piece on current Democratic approaches to judicial selection.

If I were writing a research piece on the Democratic approach to judicial confirmation, perhaps responding to the kind of ideological editorialist account given by folks like Anderson, I would want to ask one, some, or all of the following questions:

Has it in fact been Senate practice to look exclusively at "integrity, intelligence and temperament, and faithfulness to the rule of law"? Aside from how Senators would describe their selection criteria, is there any independent means of determining what the critieria have in fact been in the judicial selection process? In Justices, Presidents, and Senators, Abraham argues that in addition to qualifications, Presidents have chosen Supreme Court justices based on personal friendship, geographical and other "representational" factors, and ideological direction. How has the selection process differed for lower court appointments? Is it true that Republican presidents, beginning with Reagan, have also used ideological factors in selecting their nominees, as Sheldon Goldman and others have argued (if memory serves)? If so, is there any meaningful difference between Senate use of these factors and Presidential use of these factors?

How "originalist" have President Bush's appointees been? If only the blocked ones have been originalist, then why did President Bush nominate, and the Republican majority Senate confirm, 168 non-originalist judges? If there are self-proclaimed originalists among the 168 confirmed judges, why didn't Democrats block them as well? How helpful is originalism here, not just as a label for a preferred jurisprudential approach among conservatives, but as a variable in the confirmation process itself? Is Janice Rogers Brown really an originalist? Hasn't she also called for conservative judicial activism along the lines of what she called Lochner-lite (praising some recent regulatory takings cases decided by the Supreme Court on decidedly non-originalist grounds)?

How helpful is the concept of "mainstream" here, not just as a legitimacy-enhancing slogan, but as a description of the relationship between public opinion and judicial decisionmaking? Should judges be "mainstream?" And why do some Republican Senators -- like Orrin Hatch -- invoke the image of "milk-toast" judges who are the only ones likely to be confirmed if the partisan wrangling continues? Is the mainstream "milk-toast?" Is there a disconnect between the mainstream of judicial culture, the mainstream of party opinion, and the mainstream of the broader political culture, as Perry and Powe have recently seemed to argue?

Do retention elections in judicial races measure public opinion accurately? What do retention elections establish?

If I wanted to connect the research to my own current research agenda, I would wonder about the significance of the asymmetrical political gains that accrue when "originalists" are confirmed to the bench, and I would also be interested in the attraction of "originalism" as a political slogan in the judicial confirmation process and in contemporary conservatism more generally.

At any rate, those are some of the things I'd be interested in thinking about. Take those questions and run with them if you'd like.

MORE: Professor Solum discusses Anderson's piece here with reference to his model of judicial selection.