23 November 2003

Professor Solum, in responding to another commentator's partisan and misconceived thoughts on the judicial confirmation crisis, concludes the following:

As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judiging [sic], but this post has already gone on too long, and that is a topic for another day.

"Senator Schumer and the Criteria for Judicial Selection" (23 Nov 03) (emphasis added).

   I disagree for a much more fundamental reason: that we have now as close to a rule of law as we ever have had, so no "restoration" (or, in historical terms, a Restoration—which has uncomfortable parallels with the present that for the moment remain tangential) is necessary in the first place. I think Professor Solum's ultimate conclusion—that the excessive partisanship (not, as I've noted before, "politicization"—which suffers not only from inaccuracy but grammatical inelegance) is not based all that firmly in ideology, and that even if it were, the "left" does not object to the rule of law—is correct. I am pretty firmly of the left, and my research indicates that the best historical means of ensuring the advance of (European) liberalism is the rule of law. But that is a topic for another day.