ProfessorBainbridge.com

The Impending Anglican Implosion

Jordan Hylden muses on looming meeting between Archbishop of Canterbury Rowan Williams and the US Episcopal bishops. The prospects are ugly for anyone who cares about the health of the church universal, as the odds are high that either (1) the US Episcopal Church will leave (or be forced out of) the Anglican communion for refusing to comply with the requests made last year at the Tanzanian conference that the US Church stop consecrating actively gay bishops (meaning no more Gene Robinsons), stop formal blessings of same-sex unions, and provide space for those who dissent or (2) that the more conservative Southern Hemisphere provinces will pull out of the global Lambeth Conference.

As a Roman Catholic who studies organizations and governance, I'm curious as to whether there are specific aspects of the RC polity that help insulate it from this sort of break up. Does having a global hierarchy have advantages in promoting unity relative to national hierarchies? I'm mulling taking a break from corporate governance to think about this stuff, so constructive comments and references would be welcome.

Sarbanes-Oxley and Political Campaigns

Larry Ribstein's been on a bit of a toot lately about politicians whose political campaigns couldn't comply with SOX. In Hillary Clinton, corporate executive, for example, he wrote:

Recently I suggested that John Edwards ought to be held to SOX 404-type standards with respect to a company from which he received significant financial support. Now it seems similar questions may arise for Hillary Clinton. Today's Wall Street Journal notes:

Six members of the Paw family, each listing the house at 41 Shelbourne Ave. as their residence, have donated a combined $45,000 to the Democratic senator from New York since 2005, for her presidential campaign, her Senate re-election last year and her political action committee. In all, the six Paws have donated a total of $200,000 to Democratic candidates since 2005, election records show. That total ranks the house with residences in Greenwich, Conn., and Manhattan's Upper East Side among the top addresses to donate to the Democratic presidential front- runner over the past two years, according to an analysis by The Wall Street Journal of donations listed with the Federal Election Commission.

It isn't obvious how the Paw family is able to afford such political largess. ...

The Paws' political donations closely track donations made by Norman Hsu, a wealthy New York businessman in the apparel industry who once listed the Paw home as his address, according to public records. Mr. Hsu is one of the top fund-raisers for Mrs. Clinton's presidential campaign. He has hosted or co- hosted some of her most prominent money-raising events. ...

If it turns out there have been campaign law violations (there's no direct evidence of this yet) shouldn't Clinton take the heat for her campaign's ignoring the "red lights"? Shouldn't candidates have internal controls in place to catch problems like these? After all, the candidate is the CEO of her campaign. I'm no great friend of federal election laws, but since we do have these laws, shouldn't the candidates be held responsible for compliance?

In general, I suspect that if similar standards applied to politicians as apply to corporate executives business regulation might make a lot more sense than it does now.

He's got a point.

In More on SOX-free campaign finance, Larry wrote:

It seems the big but suspect Clinton donor I discussed recently (who gave to many Democrats' campaigns) was also facing criminal charges in California. Today's WSJ notes:

his saga show[s] that leading Democrats were willing to embrace him -- and his sudden, tremendous success in gathering funds -- apparently without asking a lot of questions.

Clinton and the other candidates are lucky they don't have to face questions about their internal controls.

Again, he's got a point.

Update: The NYT now reports:

Senator Hillary Rodham Clinton?s campaign said yesterday that it would give to charity $23,000 it had received from a prominent Democratic donor, and review thousands of dollars more that he had raised, after learning that the authorities in California had a warrant for his arrest stemming from a 1991 fraud case.

Larry Craig

Senator Larry Craig says he didn't talk to a lawyer before deciding to plead guilty to a misdemeanor disorderly conduct charge alledgedly arising out of an attempt to solicit gay sex. He also says he pled guilty "in hopes of making it go away." Whatever else one thinks of the guy, he's too dumb to be a US Senator. Did he really think nobody would notice a US Senator pleading guilty to a criminal charge? And you only need to watch one episode of Law & Order to know that the first thing you do is call your lawyer.

Filet mignon with too much going on

This is an everything but the kitchen sink recipe, but trust me.

Ingredients:

• 2@ 8 -10 oz. beef filet mignon steaks (preferably from the thick end of the tenderloin)
  
• 1/2 cup crumbled blue cheese
  
• 1 shallot
  
• 2 cloves garlic
  
• 2 tablespoons Cognac
  
• 1 tablespoon green peppercorns (preferably brined rather than freeze-dried)
  
• 1/4 cup Port wine
  
• 1 teaspoon Worcestershire Sauce
  
• 1/4 cup veal demi-glace or rich beef stock
  
• 1/4 cup cream
  
• 1 tablespoon Dijon mustard
  
• unsalted organic butter
  
• olive oil
  
• sea salt
  
• freshly ground black pepper

Preheat the oven to 350. Heat a heavy 10" skillet over high heat (I love Le Creuset enameled cast iron pans for this sort of cooking). Lube the pan with olive oil (don't use EVOO, because its smoke point is too low). Using a paring knife, cut a slit in the side of each filet to form a pocket. Season the filets with salt and pepper. I'm a little embarrassed to admit I own 5 pepper mills of varying fineness. I like to use a very fine grind to season the inside of the filets and my coarsest mill to season the outside (as though I were making steak au poivre).

Stuff the pockets with as much blue cheese as they can take. When the oil is hot, sear the filets for 2 minutes per side. Press a layer of blue cheese onto the top of each filet. Move the skillet to the oven and roast for 7 minutes (I'm assuming you want the meat medium-rare, like any sensible person would).

Transfer the filets to a plate and loosely cover with foil. If a significant amount of cheese has stuck to the bottom of the pan, it is best to clean the pan before proceeding.

Melt a pat of butter with olive oil in the pan. Add the shallots and stir until soft. Add the garlic. Stir briefly. Season with salt and coarse black pepper. Add the Cognac. Touch a long match (or better yet a lighter wand) to the pan to flame the Cognac. While the Cognac is still flaming, add the port wine. Be careful! When the flames die down, add the green peppercorns. Allow the wine/Cognac mixture to reduce to a glaze. Add the demi-glace and Worcestershire Sauce. Allow to reduce by about a third. Add the cream and Dijon mustard and allow to reduce by another third. Stir in a pat of butter. Spoon over the filets and serve.

I like to serve this with boiled new potatoes to help soak up the sauce and a plain salad.

Affirmative Action in Law Schools Critiqued by USCRC

The US Civil Rights Commission has issued a major and highly critical report on affirmative action in law schools:

This Commission finds that "admitting students into law schools for which they might not academically be prepared could harm their academic performance and hinder their ability to obtain secure and gainful employment..." Moreover, the Commission finds that racial preferences might also contribute to racial income and wealth disparities. The Commission expresses particular concern about the lack of transparency in law school admissions, urging legislation to require federally-funded law schools to publicly disclose their use of racial preferences.

In making these findings, the Commission noted the work of my colleague Rick Sander, who has written extensively on the issue.

Chairman Gerald A. Reynolds commented, "Race-based admissions have been found to harm minority law students by setting them up for failure.  Law schools that continue to use racial preferences despite this evidence should at least disclose the risks of academic mismatch to minority student applicants." Continuing, Chairman Reynolds said, "A true civil rights strategy would focus on these students much earlier in their educational development, rather than providing them with inadequate training and then using preferential treatment to admit them into schools at which they are likely to fail."

That's essentially what Rick's been arguing.

The Commission also found that the ABA is effectively pressuring law schools into using preferences in admissions:

The Commission admonished that the American Bar Association's Council of the Section of Legal Education and Admissions of the Bar has adopted a diversity standard that tacitly prods law schools to use racial preferences in student admissions.  The Commission criticizes the ABA standard because it "substitutes the judgment of the Council for that of the law schools in deciding whether diversity is essential to their educational mission."

The full text of the report is here.

Ben Aaron

I know that a number of UCLA alumni read this blog for news about their alma mater, so I'm passing along the sad news that my colleague Professor Benjamin Aaron has passed away. Ben was a true UCLA lifer, having been on the faculty from 1960 until this year. An announcement from the UCLA Institute for Research on Labor and Employment, where Ben had a cross-appointment, tells us that:

Ben had a distinguished career not only as a legal scholar but also as a leading public servant and active participant in American industrial relations. He graduated from Harvard College in 1937 and then went on to receive his law degree, also from Harvard, in 1940. During World War II, just before he arrived at UCLA, he spent four years as a staff member and executive director of the National War Labor Board in Washington, D.C., and briefly served as a member of a labor advisory commission to the Supreme Commander, Allied Powers, in Tokyo. President Truman appointed him to serve as a public member and later vice chairman of the National Wage Stabilization Board in 1951-52. Presidents Truman, Eisenhower, Kennedy, Johnson, and Bush (Sr.) appointed him to a wide range of panels, boards, and commissions. He was appointed as chair of the California Farm Labor Panel in 1965 and was also the mediator of the massive 1970 teachers’ strike here in Los Angeles. He was also a longtime member of the UAW’s legendary Public Review Board. ...

Ben received many honors in the course of his career. He served as president of the National Academy of Arbitrators (1962) and president of the Industrial Relations Research Association (1972). He also chaired the American national committee of the International Society of Labor Law and Social Security. He received the American Arbitration Association's Distinguished Service Award in 1981. In 1996, he was elected a charter emeritus member of the College of Labor and Employment Lawyers.

He published extensively and to international acclaim. In recent years he was particularly active in the field of comparative labor law. He helped found and served as senior editor of the Comparative Labor Law and Policy Journal. In addition to his numerous scholarly articles, he published a number of books, including Labor Courts and Grievance Settlement in Western Europe (1971), The Railway Labor Act at Fifty: Collective Bargaining in the Railroad and Airline Industries (1977) and Public Sector Bargaining (1988).

He was a warm and kind colleague. All who knew him will miss him greatly.

The Separation of Ownership and Control

One of the core tenets of my approach to corporate governance is that the separation of ownership and control is not a new phenomenon. (See, e.g., the discussion in The Politics of Corporate Governance: Roe's Strong Managers, Weak Owners.) So I was very interested in Nate Oman's post Virginia and the Birth of Corporate Law, in which he writes:

Virginia was organized by a royal charter that gave the [Virginia Company] a corporate existence, set up its governing structure, and defined the scope of its business. Originally, the number of investors was sharply limited and the governing structure was largely independent of their control. The company found it necessary, however, to return to king and parliament to tinker with their charter. ...

First, it massively broadened the investor base of the company, essentially creating a market in Virginia Company shares where none had existed before. Second, it revamped the governance structure so that the board of governors was elected by the shareholders rather than being appointed by the crown.

Here we see the basics of the modern separation of corporate ownership and control; namely, a large and disperse group of shareholders who elect a board to run the company. Fascinating. This is going into the book I'm writing on director primacy.

Libertarian versus Conservative Theories of Law

This is an issue on which I've written before, but Ted Frank poses it in a way that strikes particularly close to home:

Paging Professor Volokh, Ronald Bailey, and other libertarian bloggers: On what principled grounds can one distinguish between a ban on foie gras and a ban on dogfighting? If one accepts limits on the libertarian principle for animal cruelty, does that not imply that a democratic society can rationally choose to bar production of foie gras? I'm happy to have dogfighting outlawed. I'd prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference? Is it just the intelligence difference between dogs and geese? If so, why do we allow bacon? (Or does Deuteronomy have that last question right?)

Update: I'm late to the discussion apparently. Jim Henley, Julian Sanchez (who takes the hard-line view), and Megan McArdle (and Part 2); McArdle points to vegetarian libertarian Robert Nozick's take.

Update from Alex Tabarrok: "After attending dogfights it's rumored that on some nights Michael Vick would continue his bloody activities by dining on cow's flesh. No word yet on whether prosecutors will be seeking additional prison time."

As someone who has been known to slip bits of pâté de foie gras to his dogs when my good wife isn't looking, this strikes too close to home to be ignored.

Russell Kirk taught that "Conservatives value property for its own sake, of course; but they value it even more because without it all men and women are at the mercy of an omnipotent government." At the same time, however, conservatives do not make a fetish of property rights. After all, as Kirk also taught, "At heart, political problems are moral and religious problems." Finally, he followed Burke in believing that “the individual is foolish, but the species is wise.” The prudent statesman respects tradition precisely because the enduring truths of what Burke aptly called “original justice” are revealed slowly, with experience, over time. As John Randolph put it, providence moves slowly, but the devil always hurries. The conservative is guided "by the moral traditions, the social experience, and the whole complex body of knowledge bequeathed to us by our ancestors." We turn aside from ancient usage at our peril; far better to profit from the wisdom of our forbearers.

This is not to say that neither reason nor reform have no place in conservative thought. But the function of human reason within a moral tradition is not a critical one, seeking to expose the tradition’s faults, but rather a respectful one, seeking to learn what the tradition offers. Burke, for example, approved of those who “instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice [i.e., tradition or custom], with the reason involved, than to cast away the coat of prejudice and to leave nothing but the naked reason.”

Beinging skeptical of individual reason, deferential to tradition, and convinced of the need for an enduring moral order in society, the conservative is doubtful that the Constitution enshrines John Stuart Mill's harm principle any more than "Mr. Herbert Spencer's Social Statics." Instead of blanket rules, we seek to comprehend the divine intent, groping towards it through history, myth, fable, custom, and tradition.

This perspective allows us to distinguish between dog fighting and foie gras. Although dog fighting has a long history, so does opposition to it. England prohibited it and other blood sports as early as 1835. There is a longstanding consensus in the Anglo-American tradition that blood sports are cruel and ought to be banned. The wisdom of the species thus justifies an infringement on human property rights.

Director Primacy in 430 Words

I'm on sabbatical this fall, writing a book entitled "Director Primacy: The Theory and Practice of the New Corporate Governance," which obviously builds on my law review articles on director primacy. Over the weekend, I was working on drafting a short summation of what Director Primacy is all about. Here's what I came up with:

Let's review. The corporation is properly understood to be a legal fiction representing a web of contracts among multiple classes of stakeholders. As such, the law’s principal function with respect to corporate governance is facilitating private ordering by providing a set of off-the-rack default rules. While the parties appropriately remain free to modify those rules as they see fit, the default rules should be designed to minimize transaction costs. In most cases, doing so means selecting the majoritarian default as the legal rule; i.e., the rule most people would select if they could costlessly bargain with one another.

There is good reason to think that the default rules of corporate law are generally efficient. Even if one thinks long-term survival is inadmissible evidence of a rule’s merits, the evidence that state competition for charters results in a race to the top suggests that corporate law rules generally tend to evolve towards the majoritarian default.

In every state, the default rule calls for the corporation to be run neither by shareholders nor executives, but by a board of directors elected by the shareholders and responsible for maximizing shareholder wealth. Since I assume that this separation of ownership and control is a majoritarian default validated both by its long survival and the race to the top, it was necessary to develop a theory as to why this was the governance structure most corporate stakeholders would select if they could have costlessly bargained over the issue when the corporation was being formed.

The size and complexity of the public corporation ensures that stakeholders face significant collective action problems in making decisions, suffer from intractable information asymmetries, and have differing interests. Under such conditions, consensus-based decision-making structures are likely to fail. Instead, it is cheaper and more convenient to assign the decision-making function to a central decision-maker wielding the power to rewrite most intra-corporate contracts by fiat.

The analysis to this point, of course, suggests only that the decision-making structure should be one based on authority rather than participatory democracy. Yet, it turns out that corporate law was wise to assign decision-making authority to a group rather than a single individual. Groups turn out to have significant advantages vis-à-vis individuals at exercising critical evaluative judgment, which is precisely the skill set principally needed at the top of the corporate hierarchy. In addition, groups solve the problem of “who watches the watchers” by placing a self-monitoring body at the apex of the corporate hierarchy. We thus have a rather compelling story explaining why the default rules of corporate governance envision a system of director primacy.

There is much that is contestable in that brief summary, of course, all of which will be defended in the book. In addition, this passage deals only with the normative aspects of the problem. It remains to be seen whether I can build a persuasive account that director primacy has real world descriptive power. Stay tuned.

The Judeo-Christian Origins of Human Rights

Michael Scaperlanda argues that:

The idea of universal human rights did not appear out of no-where and into the heads of the Enlightenment intellectuals.  It was by and large an outgrowth of Judaic-Christian theology and philosophy.

Go read the whole thing, please. Also, in an earlier post, Michael argued that:

Despite the fact that God’s existence has not been scientifically proven (it can’t because this is beyond the realm of science) or philosophically proven beyond a shadow of a doubt, the theistic foundation can and does provide a sturdier foundation for human rights although the materialist will not see it this way.

SOX Whistleblower Provisions

Part of the Enron mythology is that former Enron VP Sherron Watkins blew the whistle on Ken Lay, Jeff Skilling, and their fellow miscreants. In fact, however, so-called “Enron whistle-blower” Sherron Watkins never really blew a whistle. A real whistle-blower would have reported the misconduct to the SEC or the cops. Watkins simply reported it to Ken Lay, and even warned him that potential real whistle-blowers were lurking among within the company. Nevertheless, by the time Congress started work on SOX, this myth of the brave employee bringing down an evil corporate empire had taken root. In order to protect those who blew the whistle on firms like Enron and WorldCom, as well as to encourage future whistleblowers, Congress included two sets of protections for whistleblowers in SOX: (1) Criminal penalties for those who retaliate against whistleblowers and (2) civil remedies for whistleblowers who are fired or otherwise suffer some form of retaliation by their employer.

In today's W$J, Michael Delikat reports:

About 1,000 whistleblowing claims have been filed under Sarbox. Only 17 were determined after federal investigation to have merit and only six of this group have kept their wins after full evidentiary hearings before administrative law judges. ... Sarbox whistleblowers rarely win because most claimants are using, or some might say, misusing, the law as a club in garden-variety workplace disputes. ...

The one-two financial punch of legal defense costs and drop in share value precipitated by wholly inappropriate whistleblower cases totally devoid of merit has cost U.S. companies millions of dollars.

Larry Ribstein comments:

... the new law obviously can give significant leverage to employees, including in cases where the firm has good reason to take action against the employee.

(HT: Ted Frank)

Well, yes and no. When I wrote The Complete Guide to Sarbanes-Oxley, I devoted considerable attention to the whistle blower provisions. I learned two things. First, labor law attorney Eugene Scalia (son of U.S. Supreme Court Justice Antonin Scalia) thinks that the statutory timelimits do not allow "nearly enough time for an OSHA investigation and decision letter; discovery; trial before an administrative law judge; post-trial briefing; issuance of the ALJ decision; and, possibly, briefing and review before the ARB." Hence, Delikat is wrong when he suggests that the low percentage of cases deemed meritorious by regulators is not, at least in part, an artifact of the short statutory time limits (his focus on the statute of limitations, by the way, is misleading; it is the 180 day limit imposed on OSHA that is the real issue). OTOH, it is certainly true, as I wrote in The Complete Guide:

A particularly serious problem arises when poor job performance coincides with an employee whistle blowing complaint. In some cases, a poorly performing employee might file a SOX § 806 complaint as a strategic maneuver to prevent the employer from taking disciplinary action. In others, an employee’s supervisors might cobble together charges of poor performance in order to discredit a whistleblower. Finally, a lousy employee might have legitimate charges to bring.

Because SOX exposes employers and managers to the risk of criminal sanctions and/or having to pay large monetary damages, attorney fees, as well as the need to reinstate terminated employees, the safest approach is to treat all complaints as legitimate even if the employee in question has a known pattern of poor performance. In order to ensure that disciplinary action may be taken against a poorly performing employee who has also engaged in protected activity, the employer must be able to clearly document that the complaint was not a contributing factor in the decision to take disciplinary action. Providing employees with regular, written performance evaluations will help establish the necessary paper record. (Managers and supervisors should be trained to avoid criticism of an employee’s protected activity in performance evaluations.) Advice from legal counsel and/or human resources personnel should be sought before taking any disciplinary action.

Clearly, the whistle blower provisions significantly raised costs and created opportunities for employees to game the system.

Copland on Stoneridge

In a column for the Washington Examiner, the Manhattan Institute's Jim Copland argues that:

Various commissions looking at our capital market competitiveness in the past year have invariably pointed to the American system of securities regulation and litigation as a competitive disadvantage.

The Stoneridge case is of monumental import because it threatens to increase these litigation costs substantially. In Stoneridge, the lawsuits, filed as class actions on behalf of a company’s shareholders, seek money from equipment vendors that entered into what are alleged to be “sham transactions” with the company. Waiting in the wings are lawsuits filed against investment banks, with potential liability in the billions of dollars. ...

The threat posed to U.S. competitiveness by expanding shareholder liability should be borne in mind as trial lawyers and their allies try to argue that the Bush administration’s position is “pro-business” and “anti-investor.” Investors in the American stock market are protected as never before. ... The fact is that average American investors are ill-served by losing yet more of our public capital to private and overseas markets — the direct consequence of giving the lawyers what they want in Stoneridge.

Go read the whole thing.

Also, in re Stoneridge, the Law Blog reviews the enormous amount of interest the case is generating and the unusually large number of amicus briefs being filed with the Court:

The list of high-powered attorneys, law professors and former government officials weighing in on a case to be argued in front of the Supreme Court this fall reads like a who’s who in securities law. Here’s a post we did from last week, as the briefs were pouring in on deadline day.

Bobby Jindal's Catholic Apologetics and the Netroots' Dishonesty

Republican candidate for Louisiana Governor Bobby Jindal is a former Rhodes Scholar who's done some interesting scholarship. Back in 2003, for example, I wrote:

So there I was peacefully reviewing what the editors had done to one of my law review articles, feeling quite content because they hadn't changed much and the changes they had made were generally improvements, when I suddenly realized that I had cited an article by recently defeated GOP Louisiana gubernatorial candidate Bobby Jindal (Relativism, Neutrality, and Transcendentalism: Beyond Autonomy, 57 Louisiana Law Review 1253, 1253 (1997)) for the proposition that: "Because all conceptions of the good necessarily invoke non-derivable moral assumptions, we cannot avoid an inquiry into the morality of an act we propose to regulate." Later in the article I also cited it for the proposition that: "Laws mala in se derive their legitimacy from ideals—justice, love, liberty—that have traction precisely because they are based in a common belief in the truth of some abstract principle." When I wrote this article 2 years ago I had no idea who Bobby Jindal was, of course, and the editorial process had taken so long I had forgotten all about those footnotes. But now, these citations are quite literally footnotes to history. Or something like that.

It appears that Jindal also wrote an essay for the New Oxford Review, in which he rehearsed the claims Roman Catholicism to be the one true Church.

This prompted Dailykos founder Markos Moulitsas Zúniga to leap to the defense of Protestants. Of course, Zúniga is an outspoken atheist, which makes one wonder whether  Markos' concern might be more partisan than theological.

Which leads me to a Crooked Timber post by Henry Farrell. I don't agree with much of Henry's politics, but I admire his intellectual honesty. This post is a classic example:

There’s a lot of excitement in the netroots over a piece written by Bobby Jindal in which he tries to persuade Protestants of the benefits of Catholicism. After reading the piece in question, I’m at a loss to understand what all the fuss is about. It seems to me to be a standard – even banal – exercise in Catholic apologetics. That the Catholic church considers itself to be the one true church, to hold the apostolic succession, to believe that works are important as well as faith etc etc … isn’t news. Nor is it news that a conservative Catholic politician would believe these things. ...

But if the netroots are blowing it out of proportion, the ‘Jindal on Religion’ website and accompanying TV ad, put up by Louisiana’s Democratic Party, are actively dishonest. The website says that Jindal argues that

Jindal states non-Catholics are burdened with “utterly depraved minds” and calls individuals who ignore the teachings of the Catholic church intellectually dishonest.

The actual quotes in their proper context are:

the alternative is to trust individual Christians, burdened with, as Calvin termed it, their “utterly depraved” minds, to overcome their tendency to rationalize, their selfish desires, and other effects of original sin.

and

I trust I have provided enough evidence to indicate that the Catholic Church deserves a careful examination by non-Catholics. It is not intellectually honest to ignore an institution with such a long and distinguished history and with such an impressively global reach.

The first rather obviously isn’t a claim that non-Catholics are utterly depraved. It’s a mildly clumsy attempt to hoist Protestants on their own petard, building on earlier discussion of how Reformation Protestants believed people to be depraved, and saying that it’s a bit odd then that Protestants should trust them to interpret religion on their own. The second is a claim that it’s intellectually dishonest to ignore the Catholic Church, and that Protestants should consider converting to it very carefully. This manifestly isn’t a claim that those who don’t follow the Catholic church’s teachings (which is the everyday meaning of “those who ignore the teachings”) are ipso facto intellectually dishonest.

Henry concludes:

I don’t know very much about Jindal’s politics, and I imagine that there’s a lot that I would disagree with. He may indeed have taken political stances that I would find absolutely reprehensible. That doesn’t change the fact that this is an obviously dishonest attack.

This is the sort of thing that keeps Crooked Timber high on my list of daily reads. They call it like they see it, even when it's not to their short-term partisan advantage.

Politicizing Judicial Nominations

Nan Aron opposes confirmation of President Bush's nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit. Why? Not because he's unqualified, but because he's not a left-liberal. Even more explicitly, blogger publius writes:

What annoyed me was the Post’s rationale – i.e., that Southwick should be confirmed because he is qualified. It’s an argument you hear a lot in judicial nomination battles, so it’s important to understand why it’s almost always irrelevant.

In all judicial nomination debates, it’s important to distinguish between a judge’s qualifications and a judge’s political preferences (as evidenced by past actions). ... Nominations should be about politics. That’s what the debate-averse wankers at the Post don’t understand. Nominations should be about politics because judging is inherently and necessarily political. You simply can’t avoid it, so we should stop trying to.

Of course, judging shouldn't be political and need not be political. But here we face the old ought/is dichotomy. Regrettably, at this stage of our history, judging is political. The law is whatever 5 unelected old men and women say it is. Certainly, the law is not what the people or their elected representatives say the law is. Because the Founders did not recognize the potential dangers the judiciary posed to democracy, they left us with almost no checks and balances on the courts. Indeed, the only meaningful check is the nomination and confirmation process. You wait for the Brennans and Blackmuns to check out and then replace them with somebody with a more attractive take on the law. Hence, the nomination process is political.

As I wrote a while back:

One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting.

What the GOP has to make sure that what goes around comes around. We've got to hold the feet of the Arons and publiuses of the world to the fire. When there's a Democrat president in the White House and a Democrat majority in the Senate, the GOP has to be prepared to use every political tool at its disposal to keep left-liberals off the bench, just as the Arons and publiuses want to keep conservatives off the bench. Thanks in part to people like me, of course, we still have the judicial nomination filibuster to do just that.

Now, some likely will complain that further politicizing the judicial confirmation process is likely to (a) result in judicial vacancies going unfilled and (b) tie the Senate up in knots that prevent it from getting anything else done. The small l libertarian in me almost welcomes the prospect of empty courts and preoccupied Senators. After all, if they can't get any work done, they can't do any harm.

OTOH, there's always Frank Caliendo's solution to nomination fights:

Naming Opportunity

Like museums, colleges, and the like, law schools routinely offer donors naming opportunities. Marquette, for example, recently announced a $30 million gift from Joseph J. Zilber, in gratitude for which a four-story atrium in the planned new Law School building will be called the Zilber Forum. (HT: Garnett)

My good wife and I have recently completed a major sewer repair and are about to launch construction of a garage addition. This is a wonderful naming opportunity for donors. Imagine the pride you'd take at the ribbon cutting ceremony for "The John and Jane Doe Sewer Complex" or the "Jane and John Roe Garage and Wine Cellar." Commemorative plaques will preserve the memory of your kindness for all time.