CONFIRMATION WARS AND OTHER LAW STUFF: Well, Lawrence Solum has moved on from confirmation wars to defending really really strong stare decisis (no, that is not an inflammation–at least not always!–it’s a jurisprudential doctrine). Solum’s a very smart guy and a fun writer, and in general his site rocks. But I think some of what he says about stare decisis is off-base. Two issues: stability as the “primary purpose” of the judiciary–as long as we’re going for “primary purpose” I’d much rather say “applying the law to particular cases” or “resolving disputes about the meaning of the law” or, jumping up a rung on the purpose ladder, “guarding the Constitution” (yes, I know con law is not the majority of even the Supreme Court’s work, but as long as we’re talking primary purpose…). I think this stance strongly colors my response to Solum. I may write more about this later.

Second, Solum lauds really really strong stare decisis (hereafter, RRSSD) as a way of depoliticizing the judiciary. Buh? Doesn’t it actually raise the benefits of mucking around with the law (B-, C-, and D-level judging, in my formulation), because as long as you slide one political power play under the bar it’s law forevah? Seems to me that’s a huge, chocolatey, cream-on-top temptation for judges to Resolve The Difficult Issues for us little people.

(Ah, I see Sub Judice said this earlier. D’oh! Oh well, in this area it is not good to be too original!)

Solum will add Part Two to his defense of RRSSD tomorrow. I look forward to it–I always find his site thought-provoking and well worth my time.

Anyway, that’s not what I intended to talk about in this post, and, as I said before, I don’t feel like I understand the issues behind RRSSD very well, so perhaps I should leave well enough alone and stop there. What I actually wanted to talk about is Solum’s proposal for resolving the judicial-confirmation wars in the Senate. I initially totally misread his post, not sure why. Actually I think he really has a handle on what needs to happen, although I have some caveats and important quibbles. (Yes, I said “important quibbles.”)

Solum writes, “Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high.”

So he proposes a “radical move”: “A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.”

Quibbles: 1) Obviously, I take issue with the precedent stuff, whatever, I’ve said what I have to say about that for today. Oh! except that it’s really pretty confusing to try to convince people that judging should be apolitical by using, as your example, the apolitical rewarding of political judging.

2) “judicial virtues rather than political ideology” misses the point. It’s about jurisprudential philosophy. Sure, let’s look at virtues too, that’s fine, but what I really want to know is whether someone believes in writing his favored policy positions into the Constitution. Not what those positions are (=political ideology), but how he believes they should be implemented.

3) This is the point I feel shakiest on, because it’s about the more horse-racing, poll-driven, politicking aspects of this issue: A solution isn’t going to come from the Senate. The pressure to grandstand is too high and the pressure on either side to cave is too low. If the ice breaks up in the confirmation freezeout, it will happen because the political stakes change, not because somebody decides we should all just get along. The political stakes will only change when the rhetorical climate changes. The rhetorical climate will only change when a lot of ordinary people get fired up about judicial oligarchy and/or getting judges confirmed. My personal suspicion is that two things will happen that will put the Senate in a position where it has to break the ice: a) A court somewhere will mandate same-sex marriage. Fur will fly. The courts will become a major political issue, much bigger than they are now.

b) A critical mass of pundits, legal theorists, and–ideally–judges will come to agree that both Bush v. Gore and Roe v. Wade were wrongly decided, and that their problems, while hardly identical, are related. (Coincidentally, that’s the view I set out in my vast A-B-C-D-judging post.) Pace Ampersand, I do not care whether you think Bush is worse than Roe or vice versa. To me, comparing their respective problems is a bit too apples-and-orangutans to be illuminating. All I want is agreement that both are bad. I think that this agreement may, just maybe, alleviate many of the left’s suspicions that textualists or whatever we want to call ’em are operating in bad faith (“You’re just promoting judicial restraint because you hate women and minorities!”).

All for now. As I say, I look forward to more on RRSSD from Solum.