05 November 2003

As proof that I don't always agree with Professor Bainbridge, I must disagree on first principles with his approval of Brian Anderson's screed in today's WSJ. Professor Bainbridge quotes Anderson as saying

For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law -- terms on which President Bush's picks, Ms. Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservative are, ipso facto, "extremist."

(I do not subscribe to the WSJ, so I am assuming that this is a correct quotation and not out of context.)

   The first principle involved here is "advice and consent." Forget Hamilton's ex post interpretation, which is at most persuasive authority and not binding precedent. (Given Hamilton's other views on the judiciary, as expressed in both The Federalist and other writings, I am not even certain that he would agree with Anderson's interpretation.) The phrase "advice and consent" could mean many things, but all of the reasonable interpretations require two-way communication—not rubber-stamping of nominees. I will not go into the problems with Anderson's factual predicates, specifically including the implication that Senator Schumer originated the "ideological litmus test" for judicial candidates.

   Sauce for the goose is sauce for the gander. Perhaps Mr. Anderson should have considered the behavior of Senator Hatch (among others) during the Clinton Administration; or the stranglehold on legislation in the House provided by the Rules Committee; or any of a variety of other problems. That his ire focusses on confirmation of high government officials who cannot be voted out of office at the next election says volumes about his priorities; and they are not complimentary volumes. Although his article does not apparently pretend to deal with anything except judicial nominations, internal consistancy—if it is achieved—would require some very troubling results.

   N.B. I was on record as favoring Estrada because I think he's a smart individual who would change his mind when required, and I'd rather practice before that kind of judge than one who is hidebound and predictable. Favorable decisions from the latter have an unfortunate tendency to backfire. I am no fan of filibusters; neither am I a fan of ideological litmus tests at any stage of the process, most particularly including consideration of nominees before the nominations are sent to the Senate. That's how we almost ended up with a champion of mediocrity sitting on the Supreme Court during the Nixon Administration.