Volokh Consiprator Randy Barnett on why he opposes allowing the legislature to base laws on moral norms:
All you would need to outlaw any conduct is a majority of the legislature to vote that an action is immoral. Assuming morality is an objective matter, majority opinion does not make something immoral.
Consider the claim that homosexuality is immoral. I strongly disagree. Now what? In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality? In what way are they experts? How does being elected to the legislature qualify them to make these judgments? Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions? Or do they just press a button and register their vote? Most importantly, how can we assess the merits of their claim? If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny.
Tyranny? Sounds more like democracy to me. Over at Southern Appeal, Owen sliced and diced Randy's argument:
Barnett's [argument] is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."
However, judges would not be required to use such a standard. They could instead all claim to be Nietzschean ubermensches, unrestricted by humanity's 'slave' morality, and rule based upon their own ideas of what would best allow for human flourishing. Or they could appeal to Peter Singer, and begin demanding that the liberties of animals be protected under due process because, after all, animals can feel pain as much as any human being. There's no real restrictions because what Barnett argues for is an unprecedented use of judicial power to enforce a single ideology -- namely libertarian ideology. But there's no reason to believe it has to be that particular ideology.
We do indeed run the risk legislative tyranny. That's the price of being a democracy. However, this problem is not solved, and is instead made far worse, by replacing the tyranny of democracy with the tyranny of oligarchy. A few annointed Supreme Court justices ought not be society's moral compass, whether they are invoking the philosophy of Mill or Mussolini. It's a pity that Barnett doesn't feel the same way, and that he twists originalism into something incoherent for the ignoble purpose of establishing libertarianism as constitutional doctrine.
Exactly. Given the choice between legislative democracy and judicial tyrrany, I'll opt for the former every time.
Update: Pejman Yousefzadeh chimes in on Randy Barnett's post confusing democracy for tyrrany:
Judges can bring the same degree of ignorance regarding a particular issue to a debate or discussion of that issue as legislators might, but the difference is that legislators are accountable to the electorate, and can be replaced in response to a stupid legislative decision. Judges are especially ill-equipped to determine morality and the popular conceptions of what is moral--as they are not elected by the populace, and indeed, we depend on elected officials to implement moral policies whenever applicable and possible. And finally, as mentioned in the post, no judge has to implement policies that people like Barnett may approve of. If/when they don't, what is Barnett's recourse? Impeachment of the judge? Isn't that more than a little difficult to bring about--especially when compared to the ease with which an errant legislator may be removed at the ballot box?
Given partisan gerrymandering, of course, it's not all that easy to remove an erring legislator, but it's a hack of a lot easier than removing a Supreme Court justice. Legislators thus are accountable in a way that judges aren't. And that's why I just don't buy Barnett's argument.
Update: Brett Marston writes:
There may be real reasons to prefer moral judgments made by jurists under certain circumstances -- although I'll admit that my best stab at a distinction here would be open ended, like: judges reveal themselves as good users of moral judgments when they reach results I find morally appealing. The same goes for legislators. ... So it's odd to prefer, as such, legislative over judicial "tyranny," as Professor Bainbridge does. I'll take the 39th, 40th, and 41st Congresses over the Taney and Taft Courts, and the Warren Court over the 106th and 107th Congresses.
So much for anything remotely resembling neutral principles. In lieu thereof, Marston offers up nothing more than naked personal preference. Instead of legitimate processes, Marston would prefer to impose on us a varying cast of tyrants who will impose his preferred outcomes. So much also for anything remotely resembling democracy - or liberty.
I'll try explaining it one more time, slowly this time. The difference is that if you don't like the 107th Congress, you can vote for legislators you like better. You can contribute to candidates all over the country who share your views (of course, your ability to do so is limited because our judicial tyrants have decided that political campaign contributions deserve less First Amendment protection than, say, child porn). You can give to 527 organizations that will promote your agenda. And so on. If you don't like the Rehnquist Court, you're screwed because you've got 9 unelected old men and women with life tenure and zero accountability. Get it? What's so odd about preferring accountability to the raw exercise of unchecked power?
Larry Solum weighs in on the Barnett kerfuffle, arguing that Barnett's critics' "posts do not provide evidence that they have even read the important secondary sources. They make sweeping statements and exaggerated charges on the basis of a very limited understanding of the issues they are discussing. This is simply irresponsible. Responsible blogging is not the same thing as responsible scholarship or legal advocacy, but we should not confuse standards that are appropriate to the medium with no standards at all. The debate over the meaning of the P or I clause is complex, serious, and highly dependent on the evidence." I think Prof. Solum has a valid point insofar as the discussion in the blogosphere focused on how one should interpret the 9th Amendment and the Privileges and Immunities clause. I think, however, that his chastisement overlooks the broader normative debate that is really going on here. Should judges actively use the 9th Amendment or the P&I clause to strike down laws passed by Congress or state legislatures? The libertarian case for judicial activism claims that that those provisions incorporate the harm principle (e.g., Kennedy's opinion in Lawrence) or some modified and more modest version thereof (which I take to be Prof. Barnett's position). As Solum's own post makes clear, however, that position rests on highly contested foundations. First, libertarian judicial activism purports to be based on an originalist approach to Constitutional interpretation. Yet, as Solum points out, there are multiple versions of originalism. And, of course, many critics reject originalism on various grounds. [Personally, I see the principal virtue of originalism as providing some ability to cabin judicial discretion where evidence of original intent is available and uncontestable. The problem with originalism, as I see it, is that evidence rarely meets those standards. Hence, I don't think originalism adequately prevents judges from simply acting on their own personal policy preferences.] Second, the libertarian case for judicial activism claims to have identified coherent content for the 9th Amendment and the P&I clause. In contrast, Robert Bork famously referred to the 9th Amendment as an "inkblot," into which judges and justices read their own policy preferences. Solum's own post suggests, at least to me, that the P&I clause is just as much of an inkblot as the 9th Amendment. Solum identifies three interpretations of the P&I clause that "can be mixed and matched in various ways." In sum, the libertarian variant of judicial activism is at least as contestable as the left-liberal variant. Yet, it provides cover from the right for judicial activists of all stripes. As such, it contributes to the current atmosphere in which no area of American life is immune from the personal policy preferences of a bunch of unelected old men and women in robes. And that is why I think it deserves criticism. Update: Mickey Edwards' op-ed The Right's Wrong Turn in today's LA Times purports to summarize the history of modern conservatism and the proper conservative attitude towards the Constitution. According to Edwards:
Forty years ago this November, Lyndon B. Johnson trounced Barry Goldwater in the Arizona senator's bid for the presidency. But far from conceding defeat, Goldwater's supporters saw the election as a mandate to build a reinvigorated national conservative movement aimed at changing America's course. ... On the electoral level, there is no doubt that Goldwater's defeat has been avenged. Conservatives have come out on top and liberals are on the run. But to what end? ...
But on other matters, there are disturbing signs that conservatism has lost its way in the years since Goldwater argued that the most important question to ask of any public policy proposal was whether it maximized freedom. ... That emphasis on individual rights no longer seems to be the principal focus of conservatives.
In other words, modern conservatism is a version of classical liberalism that sprang fully formed from the Goldwater campaign as Athena sprang from Zeus' head. This is, of course, a total crock. It ignores the essential contributions of leaders such as Russell Kirk or Bill Buckley, whose Burkean conservatism provides a sharp counterpoint to the radical claims Goldwaterism makes on behalf of the autonomous individual. It ignores the efforts of fusionists, most notably Frank Meyer, to create a coherent melding of the two strands. (My own position tends to be mildly fusionist, as I self-identify as a social conservative with modest libertarian leanings.) Indeed, it is such a radically revisionist take on the history of modern conservatism as to verge on misrepresentation. Modern conservatism is not solely about "individual rights," but rather (as Ramesh Ponnuru explained) is premised on "three basic propositions: that American foreign policy should seek to end totalitarian regimes; that the domestic functions of government, and especially of the federal government, should be strictly limited; and that the moral precepts traditionally associated with Christianity (sometimes the formulation includes Judaism as well) should be upheld." Exposing the errors in Edwards' historical treatment is critical because those errors under gird the next step in his project; namely, his claims about the proper conservative attitude towards the Constitution. in Edwards' view, the Constitution is some sort of Holy Writ devoted to protection of a radical conception of individual autonomy:
With little public debate about the fundamental question — what is the role to be assigned to the Constitution in considering issues of public policy? — modern conservatives have come increasingly to treat the Constitution as something far less than America's founders intended.
The most recent, and most egregious, example of this changed perspective is found in the willingness of many conservatives, the president among them, to amend the Constitution to prohibit marriage between people of the same sex. This is not to argue in favor of such marriages; it is simply inappropriate for the Constitution to set rules for the granting of marriage licenses.
And that is not the only example of conservative attempts to undermine the Constitution. A group of Republican legislators is revisiting the possibility of a constitutional prohibition against the burning of the American flag. Such an act is widely and properly disapproved. But the Constitution's purpose is to guarantee individual rights, not to foreclose them.
Again, this is a total crock. Edwards claims conservatives "once worshipped" the Constitution. Maybe the atheists amongst the Goldwaterites did so, but those of us who learned our conservatism at the feet of Russell Kirk know that a core principle of conservative thought is belief in "an enduring moral order." We refuse to bow down before the Constitution; for that way lies the idolatry of civic religion. (Careful readers will note the overlap between this discussion and the recent blogosphere kerfuffle over what I have described as Randy Barnett's libertarian justification of judicial activism.) Edwards' conception of the Constitution is belied by the document itself. Much of the document is simply organizational. Much of the rest of the document is concerned with the rights of groups, especially states, as with individual liberty. Consider, for example, the Tenth Amendment, which reserves rights "to the states respectively, or to the people," not to the people alone. Why then is it "simply inappropriate for the Constitution to set rules for the granting of marriage licenses"? The Constitution has been amended, after all, to (XVI) create an income tax. Even more to the point, it was amended (XVIII) to prohibit sale of intoxicating beverages - an amendment repealed not because of some theory of that the Constitution is sacrosanct, but because it didn't work. And to limit compensation of Congress' members (XXVII). If these examples could fly, why not the FMA? Only Goldwaterite fiat stands in the way. Update: Larry Solum offers up a typically nuanced and thoughtful reply to my comments of earlier today. To recap, I have frequently criticized what I call the libertarian variant of judicial activism. (Solum also has some very interesting thoughts on why the term "judicial activism" tends only to obfuscate.) This variant claims that the Ninth Amendment and the Privileges & Immunities clause of the 14th Amendment incorporate some version of classical liberalism's harm principle. Judges should invoke those constitutional provisions to strike down state and federal laws that violate the harm principle. (I associate this position particularly with Randy Barnett, who uses a very modified version of the harm principle.) I've offered various criticisms of this variant of judicial activism, but ultimately my argument rests on two basic points. First, a strong presumption in favor of the legitimacy of democratic majorities. Second, any variant of judicial activism allows judges to impose their own personal policy preferences on society. As a result, the opinion of 5 legal elites on the Supreme Court - whose opinions and attitudes may well be far out of step with those of ordinary Americans - trumps that of legislative majorities, referenda, etc. I take it from Prof. Solum's post that he agrees that judges should not be allowed to impose personal policy preferences, but rather should be constrained in some way or another:
I recognize that the ideal of a formalist constitution--a constitution that constrains judges as well as the political branches--has been eroded and degraded by the ascendancy of legal realism and the politicization of the judiciary. The downward spiral of politicization that has characterized both judicial selection and the practice of judging cannot be ignored. We are faced with choices. We can embrace politicization of the judiciary--Levinson and Balkin. We can attempt to confine politicization to the political branches by nullifying the written constitution and going for majoritarian democracy--Bainbridge. Or we can try to reinvigorate the idea of formalist interpretation of the written constitution. ...
And that leads me to the conclusion that our practices of judicial selection must be changed. For our constitutional system to work, judges must be selected for excellence (or judicial virtue) and not on the basis of their political ideology. In particular, judges should be selected for their possession of the virtue of justice--the disposition to decide cases on the basis of the rules laid down and not on the basis of their own theory of what the law should be.
I want to be very careful here, both because I have a lot of respect for Prof. Solum and because I think he presents a very attractive vision of a depoliticized judiciary. Unfortunately, like a lot of attractive visions, I believe his solution suffers from what Harold Demsetz calls the Nirvana fallacy. Economist Demsetz developed the fallacy as a response to those who advocate government intervention whenever there is a perceived market failure. The fallacy assumes that government actors are disinterested, fully informed, and endowed with perfect foresight. Because these assumptions do not hold in the real world one cannot assume government intervention will be superior to imperfect markets. Believing we can get to Solum's attractive vision of the judiciary requires us to assume that Presidents can be induced to make disinterested and fully informed decisions about judicial nominations - that they will in fact nominate judges who can be predicted with confidence to hold to the formalist approach. Then you have to believe that the incredibly broken Senate process of advice and consent can be reformed so that disinterested Senators will make fully informed decisions to approve only those judges who can be counted on (with perfect foresight) to adhere to the formalist approach. Finally, you have to assume that judges will be disinterested decisionmakers who can apply the formalist approach with perfect information and foresight. I trust Prof. Solum will forgive me for believing that we cannot get there from here. We would not only have to fix the nomination process, his vision likely would require radical changes not just to politics but also to legal education itself. I believe it was Judge Richard Posner who claimed: we are all realists now. Legal realism is the sworn enemy of Prof. Solum's formalism, which is a problem for him because legal realism is the dominant model of legal thought in the academy and profession. If we can't get there from here, I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions. As imperfect as the political process is in a world of campaign finance abuses and gerrymandering, legislators are still more accountable than unelected judges. Can we get there from here? I don't know. Congress and Presidents have learned that it is easy to duck hard questions and leave them to courts. Courts have learned that the people and their representatives will simply roll over and play dead no matter how much of American life is swept into the judicial arena. My guess, however, is that it would be easier to get to a quasi-parliamentary system than to a regime of legal formalism. Update: Randy Barnett weighs in again with quotes from various founders that collectively add up to the following:
These men did not care for unchecked democracy, having experienced it first hand, and they wrote a constitution with multiple checks on majority will includng separation of powers, federalism, limited enumerated powers, express prohibitions on federal and state powers, express protections of rights,and co-equal judiciary with a "judicial power" that included judicial nullification of laws that violated these restrictions.
I wonder what those founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, "Day by day, case by case, ... designing a Constitution for a country I do not recognize." My guess is that many of them would agree with Judge Bork that the courts have taken sides in the "struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left." And even among those who would take the other side of the culture wars (Jefferson?), there might be some who would recognize that their cherished checks and balances are breaking down as the Court becomes less and less accountable. (Quotes taken from Richard Neuhaus' review of Bork's latest book: Coercing Virtue: The Worldwide Rule of Judges. Those who have been following this debate will scarcely be surprised by my ringing endorsement of that book.) As I read history, most of the founders were sensible and pragmatic men rather than visionary idealists. In their time, perhaps runaway democracy was the main problem. In our time, the main problem is undemocratic legislation by thin (often 5-4) majorities of the Supreme Court by which the justices impose their personal policy preferences on virtually every aspect of American life. Indeed, even Prof. Solum recognizes that:
The politicization of the judiciary plus the general and abstract language of the individual rights, separation of powers, and federalism provisions of the United States Constitution slowly but surely created a judiciary that sometimes views constitutional interpretation as the appropriate vehicle for enacting personal beliefs about what the law should be into binding constitutional law.
Surely that is a situation of which the founders would have disapproved. Update: Barnett replies:
And with extremely rare exceptions, courts are not imposing their preferences on individual citizens. They are stopping legislatures from imposing their preferences on individual citizens. When speaking of imposing one's preferences, there is a huge difference between a court mandating gay sex--which no court has--and stopping legislatures from putting adults in prison (where they may well be raped) for engaging in consensual with an adult of the same in the privacy of their own homes, which has now been held unconstitutional.
A couple of observations: (1) It is now clear that Barnett is on the other side of the culture wars from most conservatives. Modern conservatism is not solely about "individual rights," but rather (as Ramesh Ponnuru explained) is premised on "three basic propositions: that American foreign policy should seek to end totalitarian regimes; that the domestic functions of government, and especially of the federal government, should be strictly limited; and that the moral precepts traditionally associated with Christianity (sometimes the formulation includes Judaism as well) should be upheld." Legislative efforts to uphold the third prong evidently constitute legislative tyrrany in Barnett's world. (2) It's not just about sex. Barnett's expansive theory of the 9th amendment is at least as radical as William O. Douglas' theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett's theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil. (I'm trying to get a discussion of this issue started over at the Catholic blawg Mirror of Justice.) Update: Barnett replies:
On my theory of the 14th Amendment in which all its limitatations on states are justiciable, IF a fetus is a "person" then laws permitting abortion violate the Due Process Clause, and if a fetus is also a "citizen" (and if the fetus is a person, then why isnt't it also an American citizen too?), it also violates the Privileges or Immunities Clause. On this reasoning, state laws permitting abortion should be held unconstitutional, and under Section 5 of the 14th Amendment, Congress has the power to protect fetus's from murder if a state fails to do so.
While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.
The dispute remains - who decides? A judge who agrees with Barnett that a fetus is not a person can effectively take the issue of the table, at the very least until turnover on the court produces a majority prepared to reverse that decision. (And, as Casey demonstrated, even the more conservative members of the legal elites cannot be trusted to do the right thing in this area). When a legislature decides to allow abortion, we can try voting them out of office immediately. In a democracy, there is always a risk that immoral laws will be made. I simply prefer to take my chances on legislators who can be held to account through the electoral process than on unelected judges subject to no meaningful checks and balances. Update: Barnett still thinks its about sex and he's still wrong about that. Update 2: Clayton Cramer is on the march again, with a post explaining the conservative skepticism of the 9th amendment and a post on the role Barnett's theory plays in the culture wars. Both are must reads. Update 3: Joel Buckingham at Calblog agrees with Randy Barnett "on the founders view of democratic majoritarianism," but argues that "despite the founders aversion to democratic majoritarism, their device in limiting it, was not an imperial judiciary." Yep. Update 4: Larry Solum's got a very long entry in our ongoing discussion of judicial activism. At the outset, it's worth noting that there's a substantial amount of commonality in our positions. We agree that judges sometimes use their power to effect personal policy preferences. We agree that's a bad thing. We even agree that the root problem is a crisis of constitutional faith. Where we depart, it seems, is that I've lost what little faith I ever had in judges to refrain from effecting personal policy prefernces in the guise of constitutional interpretation, while Prof. Solum retains his faith that the system can be fixed. In turn, this leads us to different recommendations for fixing a system we both agree are broken. Go read Prof. Solum's fascinating post and then come back and read my comments.
| Solum | Bainbridge |
|---|---|
| This is the heart of the issue. How does Bainbridgean Legislative Supremacy stack up against Aretaic Judicial Selection with respect to the criterion of feasibility? | Agreed |
| I must admit that these are trying times for those who place their faith in the rule of law. The rule of law is threatened. Important political actors have openly abandoned even the pretence that constitutional adjudication is law application and not law making. | This is an important concession on Prof. Solum's part. It essentially concedes that the system is broken, leaving open for debate only the question of how to fix it. |
| Bainbridge’s argument relies in a crucial way on our intuitive sense of what is feasible and what is utopian. But feasibility isn’t really an intuitable quality! | What else do we have to rely on? Solum and I agree that the system is broken. Solum says: Let's try "Aretaic Judicial Selection." I say "It won't work." We're both making predictions. We both must make our best guess as to what the future would hold under specified conditions. If politics is the art of the possible, we have to use our informed intuition as to what is possible. |
| [Bainbridge] fails to provide a warrant for his implicit assumptions that (1) we cannot fix the judicial nomination process, and (2) we cannot make radical changes to legal education. | As for #2, I concede that 16 years of attending faculty meetings in which even minor tweaks to the first year law school curriculum went unadopted leave me dubious as to the likelihood of making such a foundational change as substituting formalism for the various forms of realism that currently dominate legal education. (Note, by the way, that Solum nowhere denies my claim that realism and its variants (which include much of law & economics, critical legal studies, feminist jurisprudence, etc....) dominate legal education. If realism is the status quo, isn't the burden of proof on Solum to show how we could revive formalism as the dominant principle by which lawyers are educated.) Fixing legal education is critical because it is where the opinions of future judges are forged. Would Solum deny that the vast majority of modern legal elites have been inculcated with realism? As for #1, use your own intuition. Do you think we could count on Presidents to make disinterested and fully informed decisions about judicial nominations - that they will in fact nominate judges who can be predicted with confidence to hold to the formalist approach? Do you think the incredibly broken Senate process of advice and consent can be reformed? Do you trust judges to be disinterested decisionmakers who can apply the formalist approach with perfect information and foresight? I'm not sure what proof we could offer Solum that he would accept, but I think I can show that he has not proven the converse. |
| None of this is to say that I have demonstrated that there is no route from the status quo to a Bainbridgean quasi-parliamentary system. Rather, my claim is simply that Bainbridge owes us an explanation as to how these obstacles could be overcome! | The post to which Solum is responding actually conceded that it would be tough to get where I would like us to go. As I see it, there are two mechanisms available. (1) Shots across the judiciary's bow. I've justified the FMA, for example, on this ground. It would send a signal to courts to stop intervening in the culture wars. (2) The nuclear option. Section 2 of Article III of the Constitution provides: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Let Congress exercise that power. Prof. Solum will respond that any such attempt would be subject to Presidential vetoes and/or Senate filibusters. I'll concede in advance that it would be really tough to surmount those obstacles. Yet, I still think it would be easier than reviving formalism |
| Is the revitalization of formalist constitutional interpretation feasible? ... The second step in my argument is a model of judicial attitudes (or dispositions). That model assumes that judicial attitudes can be measured in two dimensions: (1) political ideology (modeled as a point on a real line from 0 (far left) to 1 (far right), and (2) judicial philosophy (modeled as a point on a real line from 0 (perfectly realist) to 1 (perfectly formalist). A given judge then occupies a position in this two dimensional space .... | Within the legal academy, at least, the choice between formalism and realism is perceived as being driven by ideology. The crits (and some law & econ types) associate formalism with conservative politics. Given that Justices Thomas and Scalia claim to be formalists, it seems likely to me that Senators like Leahy and Schumer would associate formalism and conservatism. |
| The third step in my argument is a representation of the zone of acceptability of the party of the left and the party of the right in this two dimensional space. The intuitive idea behind the model is simple. If you are the party of the right, you will find judges who are realists acceptable only if you agree with their political ideology. As their ideology moves to the left, you will veto their selection unless the move towards formalism on the judicial philosophy line. The preferences of the left are symmetrical and opposite to those of the right. This yields the following model of the confirmation space—the area in the two dimensional judicial attitude plane in which neither party will exercise a veto over the nomination .... The fourth step in my argument is simply to observe that highly formalist judges are in the confirmation zone. This is simply a fancy way of saying that the selection of formalist judges is feasible. If both the left and the right have a veto over judicial selection, then two kinds of judges are confirmable. One kind consists of realist political moderates. The other kind consists of legal formalists. | (A) If I'm right that formalism will be perceived as having an ideological component, then Solum's feasibility argument collapses because formalists will be perceived (often wrongly) by the left as being unconfirmable rightwingers. (B) I'd like Prof. Solum to point us to evidence that the set of legal formalists is sufficiently large to provide an adequate pool of potential judicial appointees. Prof. Solum quoted a passage from my post: "I believe it was Judge Richard Posner who claimed: we are all realists now." Solum even highlighted it. Yet, he never responded to it. [Update: My thanks to CE Petit who implicitly supports my point by weighing in with an argument, inter alia, that law is the continuation of politics by other means.] Here then is where Prof. Solum seems to be operating on faith - belief in things unseen. Specifically, faith that there is a pool of formalists who would be appointable and acceptable to both sides of the partisan divide. I trust Prof. Solum will forgive me for regarding that pool as a thing unseen whose existence remains unproven. |
