THANKS FOR THE (STRATEGY) MEMOS

(With apologies to Michael Feldman.) Rick Hasen is not impressed by the complaints expressed by Melanie Kirkpatrick that the stolen Democratic Judiciary Committee strategy memos indicate that interest groups are engaging in "political maneuvering" with respect to judicial nominees:

The problem comes when the interest group pursues something in its self-interest that opposes the public good. I don't see that here. Rather, we have an ideological disagreement over what the public good requires.

Again, if folks like John Cornyn are so concerned about interest group influence on the process, I'm sure that they'll support a full and accurate publication (not theft) of all strategy memos on judicial nominees covering the past forty years or so of Senate and executive branch action in the area. Republicans want to engage in ideological disagreement with Democrats under the cover of "following the law" pure and simple. They'll back themselves into a corner if they really want to claim that political strategy and ideological difference don't have adjacent seats at the nomination and confirmation tables. I'm happy with that.

The appeal of the Republican approach here shows in part the constitutive nature of language, though. I think that Republican ideologues on judges have really convinced themselves in some cases that they really are "following the law" and that Democrats are not. That doesn't make it true, however. It's also worth noting what the appeal of the "following the law" claim is. I see it as primarily threefold: (1) it hooks current Republicans into an imagined tradition of continuity with men (and some women) of the past who have the status of Founders and protective fathers (and some mothers); (2) it allows for an argument that establishes the responsibility of legislative branch members against court authority (courts should be deferential, especially on issues that Republicans claim to care about like abortion and gay rights; they shouldn't be deferential in other areas, though); (3) it allows for a not-so-subtle critique of the perceived excesses of the 1960s, the era of civil rights, sexual liberation, the use of state power to dismantle hierarchies, and the ascendance of a more critical approach to tradition and the use of power public and private.

That's a heady mix. It might even be called a comprehensive approach to life, linking politics, morality, history, and national identity. You're not really going to be able to counter the charm of that entire view by simply appealing to the fact of interest group influence on both the nominations process and the political process more broadly -- even if Republicans are part of that process. Nonetheless, I think that the Democratic approach here is more honest because it requires you to willfully submit to fewer myths about judging and the political process that affects both the nominations process and the development of law as a whole.