YOU SPIN ME RIGHT 'ROUND, BABY, RIGHT 'ROUND, LIKE A RECORD, BABY. . .

Larry Solum raises again his powerful arguments concerning what he calls the "downward spiral of politicization" in the judicial nominations process, here. Quite apart from the fact that his argument is analytically profound, the analysis that Solum has provided has also been influential among Senators and partisans themselves; the term "downward spiral" has found its way into the high-level public debate on this issue. And several folks have added their thoughts on Solum's last post as well: Matthew Yglesias contests the relevance of Solum's formalism / realism distinction in terms of judicial outcomes, here, and Professor Bainbridge responds with a call to re-empower the legislative and executive branches.

The final passage of Solum's argument is worth some reflection:

The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.

Rick Hasen notes that Prof. Solum appears to conflate ordinary high-level ideological disputes on the Supreme Court with "corruption." I would agree with that claim. I would also like to highlight the two other claims that Solum raises here: that the end result of the downward spiral is a "politicized judiciary" like "much of the third world" has, and that such a judiciary would create uncertainty in markets and ultimately reduce economic growth.

As for the third world: Solum is probably thinking about places like Kenya and Bangladesh, where judges have been accused of taking money directly from plaintiffs in return for a favorable outcomes. The Bangladeshi judiciary is in fact notoriously corrupt, but not all judiciaries in the third world are as bad as in Bangladesh, of course, which consistely scores the worst in global corruption indices. In India, for example, the appellate bench is not known for corruption. Quite aside from the corruption question, one way that the Indian constitution combats the politicization of the judiciary is the use of mandatory retirement ages for members of the Supreme Court (65) as well as specific qualifications that nearly guarantee that people are quite old once they get there (5 years service on state high courts or 10 years at a High Court bar or on other courts; the qualifications are not exclusive but they have become the norm in nominations). These qualifications concern the Indian Supreme Court and not the lower courts, but, in general, the example of the Indian Constitution could be instructive for us: shorten the tenure of judges and they will be less of a partisan prize.

In his reference to markets, Professor Solum expresses a broader cultural anxiety and one that he has expressed on past occasions as well, namely, that what is distinctive about the U.S. is a commitment to the rule of law (non-corruption in judges as part of that commitment), and that a politicized judiciary is a broad threat to the existence of the rule of law as a widely shared cultural norm. The reference to well-functioning markets is only a part of that fear, however. The narrow market transparency issue is not really a problem in the U.S., I'd say, and is unlikely to be one in the future, at least with respect to the question of ideological appellate judging. The U.S. is still the country in the world with the most well-developed system of protection for property rights, and, if the trajectory of groups such as the Pacific Legal Foundation and the Institute for Justice is any guide, the future politicization of the judiciary is likely to result in an even more fully constitutionalized protection of property -- a direction I find extreme, as I've noted below, but it's still one that, paradoxically, is likely to assuage this particular fear expressed by Prof. Solum.

In Solum's latest post, the market transparency issue seems to me to be a proxy for fears regarding the fate of rule of law in general. My sense is that this concern misses the mark. The anthropological work of Patricia Ewick and Susan Silbey in the Common Place of Law seems to indicate that the rule of law exists in public consciousness in a complex cultural space that transcends the boundaries set by the categories of formalism vs. realism. Ewick and Silbey argue that people have quite complex views on the rule of law, based partly on the cultural scripts out there and their own experiences with the legal system. What people think about the appellate courts is not directly addressed by Ewick and Silbey, but I would hazard a guess that it comes as no surprise to people that appellate judges bring to the bench complex approaches to controversial issues. Terri Jennings Peretti argues that public opinion research seems to reveal a basic "realist" approach to appellate judging among the broader public, when they pay attention to the appellate courts. In other words, the American people can probably live with the same insight that the legal realists brought to high-level theoretical discourse.