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. |
