Confirmation Wars: “Moderate” and “Extreme” Are Meaningless Labels
Russell Korobkin has a provocative post on the Volokh Conspiracy, arguing that the confirmation wars are a good thing:
- The important question, though, is whether it is appropriate for senators to block a president’s nominations just because (1) they have the votes to avoid cloture, and (2) they don’t like the nominee. I used to think that these maneuvers were very bad behavior, inconsistent with a civil political dialogue and proper respect for the opinions of others (especially others able to win election as president). But I’ve changed my mind. The Senate’s “advise and consent” power plus the filibuster and cloture procedures allow the minority party to block nominees that they don’t like, and they ought to exercise that power. The Democrats are now accused of “playing politics” with Estrada, and of course they are. The Republicans were accused of the same when they stalled Clinton nominees, and of course they were. But presidents play politics as well when they make appointments. The bilateral monopoly situation (neither side can get a judge appointed without the other) should ensure that either (a) presidents appoint only judges that everyone can live with, or (b) presidents must make concessions on some nominations in order to get their favorite candidates confirmed. Either way, the country gets a more balanced judiciary than it would if the Senate played doormat, and one that is institutionally situated to protect the country against whiplash caused by the violent and constantly changing winds of majoritarian politics.
But what is “a more balanced judiciary”? This notion is much trickier than it might at first appear, because there are at least two dimensions that figure into any notion of balance–and even this is a vastly over simplified picture. Let’s start with a very simple picture. Suppose that judges can be rated on a simple left/right spectrum:
________Formalist_____________________________
___________________Left___________________Right
If left/right political ideology were the sole relevant attribute, then we could define moderations as the zone in the center of the spectrum. Let the plus symbol (“+”) denote those positions on the left/right political ideology line that are moderate:
________Formalist____________++++++++_________
___________________Left______Moderate_____Right
But this picture is much too simple. In the real world, judges are mutlidimensional and labels like “moderate” and “extreme” (especially if undefined and criterialess) are virtually meaningless. To get a richer sense of the systematic ways in which judges differe, we need, at the very least, to consider two dimensions of judicial attitude. On the one hand, judges (like the rest of us) have political beliefs, and we might map these onto a simple one dimensional left to right scale. On the other hand, judges have judicial philosophies–attidutes about statutory and constitutional interpretation, the role of precedent, and so forth–and we might map these onto a simple formalist-realist scale. Let’s assume that a formalist judge (near the origin of the vertical axis) decides cases on the basis of the legal materials and insofar as humanly possible does not allow her political ideology to influence here decisions. At the apex of the vertical axis would be a realist judge, who decides cases purely on the basis of her ideology–without allow the legal materials (statutes, constitutional provisions, precedents) to influence her decision. This very simple picture yields a two dimensional space:
_____________________Two Dimensions of Judging
__________Realist__|
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________Formalist__|__________________________
___________________Left___________________Right
But what counts as moderate in this space? The answer to this question depends on your general jurisprudence. Consider the following approaches to defining moderation:
- –Realist Moderation. Some extreme legal realists believe that law simply doesn’t constrain judicial decisions. For the realist, moderate canidates for judicial office are those who would decide cases the same way as a politically moderate realist judge. On the diagram below, once again, let the plus symbol (“+”) designate the moderate positions in the two dimensional space. The moderate judges will cluster in the top center of the two-dimensional space:
_____________________Realist Picture of Moderation
__________Realist__|
___________________|________+++++++++
___________________|_________+++++++----Moderate Zone
___________________|__________+++++
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________Formalist__|__________________________
___________________Left___________________Right
–Formalist moderation.Formalists (or their contemporary cousins, neoformalists) see moderation in an entirely different way. To a formalist, the key to moderation is avoiding politicized judging. Sophisticated formalists know that politics might influence even a formalist judge who tries in good faith to set aside her political beliefs, but formalists believe that judges with different political ideologies will converge on a fairly narrow band of legally correct outcomes. On the formalist picture, the moderation zone will stretch out across the bottom of our two-dimensional space:
_____________________Formalist Picture of Moderation
__________Realist__|
___________________|______
___________________|
___________________|
___________________|
___________________|_________+++++++
___________________|_______+++++++++++----Moderate Zone
___________________|______+++++++++++++
________Formalist__|__________________________
___________________Left___________________Right
Is Judge Judy a Moderate?
But now we have a problem. Formalists and realists will disagree about the assessment of particular judicial candidates. Let’s take a hypothetical example. Judge Judy is a formalist, and believes that even justices of the Supreme Court should strictly adhere to stare decisis. Judy also believes that at the margins and in cases where there is no precedent, judges should follow the plain meaning of the constitutional text, resorting to structure and history only when necessary to resolve ambiguities. Judge Judy therefore believes that Roe v. Wade should be followed as precedent. Some realists may argue that she is an extreme left-wing judge, because she believes that Roe cannot be overruled. And some formalists may see her as a moderate, because she believes that the doctrine of stare decisis overrides her personal beliefs. This example has been vastly oversimplified, but even in this simplistic form is sufficient to demonstrate an important point. The meaning of the labels “extreme” and moderate” is relative to a theory of general jurisprudence. The very same judge could be labeled a moderate by a realist and an extremist by a formalist–or vice versa. Without articulated criteria for their application, the labels “moderate” or “extreme” are meaningless as applied to judicial candidates.