March 23, 2004
The Switcheroo
Lawrence Solum reports on the reception his latest paper got at a conference:
Dawn Johnsen's comments focused mainly on my presentation--with which she strongly disagreed. One of Johnson's moves was to distinguish between political ideology and legal ideology. Johnson argued that consideration of legal ideology is legitimate, even if it would be improper to consider purely political ideology. Johnson also questioned the notion that formalist even possible judging possible. But if formalism isn't possible, then what is the difference between political and legal ideology? Johnsen's comments were intelligent and fair.The "but you're contradicting yourself!" objection is clever, but it doesn't actually work as an objection to an objection. The two Johnsen claims both stand independently. Solum's done a lot of work that's supposed to point in the direction of answering the "formalism is impossible" objection and that's a big debate that's not going to vanish any time soon.[emphasis in original]
The political ideology/legal ideology distinction, however, is an important one for Solum to come to grips with. As it happens, I was hanging around Chuck Schumer's communications office before the infamous op-ed was published and I think, in part based on discussions taking place there at the time, that the "judicial ideology" means "political ideology" interpretation is mistaken. What was meant by "judicial ideology" is something like "theory of judging."
Among self-described formalists there remains a wide-range of disagreement as to how constitutional cases should be decided. These differences have political consequences. One could interpret this to mean that formalism is just a kind of fraud -- libertarian originalists are really just libertarian realists in fancy dress, similarly with conservative originalists, and Solum upholds strong stare decis because he's really a liberal realist who wants to pretend to be a formalist while maintaining many liberal results of the 1950s-1970s. Alternatively, one could -- and for the purpose of discussing Solum's article probably should -- take these to be honest differences of opinion about the best kind of formalism.
These disputes don't need to track political opinion. I could believe that socialism is the best economic system while also believing that the US constitution actually entrenches libertarianism. Or I could believe some other combination. The point is that a person who maintains that formalism is possible ought to concede that there remain varieties of formalism and that the choice between these varieties has important policy consequences.
Now, given the fact that reasonable people disagree as to how the constitution should best be interpreted, and given the fact that which way these choices go is important, why shouldn't the Senate consider the merits of a candidate's judicial theory? Solum would have it that they should only consider the candidate's character, meaning that a president who sent through a raft of conservative-formalists possessed of the virtue of justice should have all his nominees confirmed. Or rather, they should all be confirmed unless the Senate opposition can demonstrate that their conservative formalism is unprincipled, a matter of putting personal beliefs ahead of the law. But what if the nominees are just honestly mistaken about the best way to judge constitutional cases -- surely there are some people like that -- why shouldn't the Senate be able to take that into consideration? On the most generous interpretation of his theory, this, I think, is what Schumer should be understood as saying.
Posted by Matt Yglesias at March 23, 2004 04:49 PM | TrackBack Let's make a deal. If the President will appoint judges solely on the basis of character and competence, without regard to either legal or political ideology, then the Senate will confirm solely on that basis.
Any takers?
Here's my problem. You are potentially making a dangerously broad rift between judicial and political ideology, where the varieties of formalisms constitute some sort of formal apparatus divorced from the world, and the important policy consequences constitute the effects the apparatus has on the world. In this way, a judge's formalism is like mathematics, a sort of abstract symbolic system whose only demand is consistency, and which only has expressive power when applied to the world.
So if the only real demand of a formalism is its consistency (because it has nothing to do with the policy consequences), then a judge can pick and choose whatever consistent formalism they like depending on what policy consequences arise. Hence, Solum upholds strong stare decis with the consequence of maintaining liberal results of the 1950s-1970s; but, as he may be grilled on by the Senate later, that commitment to strong stare decis may have unforseen policy consequences that he certainly does not want. In this case, therefore, if he changes his commitment to stare decis, it is an indication that his personal policy beliefs do in fact inform his supposedly non-worldly formalism. If not, then what made him decide to commit to the strong stare decis formalism in the first place?
What's missing is why Solum would have picked strong stare decis in the first place if judicial formalisms have nothing to do with policy consequences. If the only important quality of a formalism is its consistency and expressive power, then the only reason to choose one over the other is that this one has more descriptive/prescriptive power in this area of law, or that one more power in that part of law. But even then the position that formalism has nothing to do with policy consequences begins to have trouble, because it's hard to see how the decision to focus on one area of law is divorced from policy decisions.
Even supposing a strong separation of formalism and policy consequences, it just seems naive to me to think that the original acceptance of one variety of formalism over another has nothing to do with with its consequences. There is no reason to stake oneself on one formalism over another if there is no commitment to the outcomes of the application of that formalism to the real world.
Posted by: Sig at March 23, 2004 05:29 PMcompetence goes with ideology. A judge who only looks to the text and history when it is politically expedient is incompetent in my book.
Posted by: Reg at March 23, 2004 07:08 PM"Johnson also questioned the notion that formalist even possible judging possible."
What the hell are you people talking about? Are you all a idiot?
I posted this link below, but I am pasting here also, because:
1) It is a very good piece of work.
2) It changed my reading of Solum's recent work on confirming judges. Instead of vague ideas about character, maybe Solum is trying to achieve some kind of Original Position for judge confirmation. At least, it appears Solum is quite influenced by Rawls.
3) It made me wonder of how aware MY was about Solum's work, and if he had studied this article.
4) Made me curious about MY's thesis. Matt, would it be possible to provide a link to it?
"But if formalism isn't possible, then what is the difference between political and legal ideology?"
Maybe I don't get it. You bold this sentence and then act as if the clause before the comma doesn't exist. You go on an extended discussion of different types of formalism while ignoring the idea that Johnsen is asserting that formalism in any of its forms isn't possible. Of course Solum can see the difference between political and legal ideology, he believes in a form of formalism. His question was how can someone who DOES NOT believe formalism is possible make a distinction between political and legal ideology.
Am I missing something here?
Posted by: Sebastian Holsclaw at March 24, 2004 01:58 PMSorry, I forgot the 'emphasis in original'. But still, he tried to get you to pay attention to the sentence. Why ignore the initial clause?
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Posted by: adipex at April 1, 2004 09:20 PM