Professor Bainbridge made the following observation earlier today regarding judicial nominations:
I suggest that the politicization of the judicial confirmation process is a symptom of the broader legalization of politics. We live in an era characterized by what Mary Ann Glendon aptly calls "rights talk”; i.e., political rhetoric dressed up in the terminology of legal rights.
"The Politicization of the Bench and the Legalization of Politics".
It all depends upon what one means by "politics." In this discussion, the term is employed almost interchangeably by some commentators—one of them being Daniel Henninger; I am afraid I must vehemently disagree with Professor Bainbridge on the internal reasoning of the editorial to which he refers, but that is for another time—to mean three different, not necessarily congruent, concepts:
- Partisanship, in this country best demonstrated by the Democrat/Republican struggles. Partisanship often is sufficient—consider, for example, all the conservative Southern Democrats who voted to enroll Tip O'Neill as Speaker of the House—to overcome real interests in
- Ideological values, such as Professor Glendon's apt observation on political rhetoric, which in turn often masks
- Procedural aggrandizement, which is perhaps best illustrated by Emmanuel Goldstein's aphorism "The object of power is power."
I believe it foolish to pretend that all forms of politics can ever be excised from the law. Even if it is not in the judiciary, it will inherently appear in the kinds of cases that make it all the way to an appeals court—because procedural aggrandizement is intimately connected with having the resources to pursue an appeal in the first place.
All of that said, I hear Professor Bainbridge (and others) demanding—and rightly so—an end to the dominance of the first, and to some extent the third, "kind" of politics in judicial nominations. As Orwell noted in a not too different context, "The opinion that art should have nothing to do with politics is itself a political attitude." ("Why I Write") Any good lawyer can completely change the tenor of an argument through redefinition of terms. To keep this worthwhile discussion from becoming overly prone to misinterpretation on that basis, a writer should make every effort to be at least internally consistent in his or her use of such broad terms—and that includes the context of quotations and references (part of the source of my dislike for Henninger's editorial). This is part of that highfalutin' concept of "intellectual honesty." Admittedly, that is honored more when breached than when required.