Dan Ray on Judicial Appointments

Editor's Note: Dan Ray left this as a comment on the thread below, but it's so long and detailed that I think it deserves to be up here on its own where everyone can read it. Dan is a law professor and a longtime reader who has become a friend as well and I have extended an invitation for him to be a guest blogger whenever he has the time or interest to do so. As we get more into questions of constitutional law in the near future, I'm sure he will lend us his knowledge from time to time and we will all benefit from that. Here is his statement:

This is a great topic, and I look forward to reading and participating in future entries and discussions. The issue of federal court appointments was probably the biggest "sleeper" issue of this election cycle. Pollsters asked voters what issues brought them out to vote (e.g., the economy, the war on terror, "morals") but federal court appointments rarely made the polling lists. Why is this issue so compelling? Because federal court appointments (particularly at the Supreme Court and Circuit court levels, but don't overlook the district court) are an integral part of the neoconservative agenda to entrench social and economic policies well beyond the term of any sitting politician. Judicial policy entrenchment is not a particularly efficient model, but it is remarkably effective. I hasten to add that the neocons were not, of course, the first to think of this. Judicial entrenchment is a tried-and-true method, one that is as old as our judiciary itself, and one that has been, and continues to be, practiced by politicians of all stripes.

For those who are new to the issue and would like some foundation, let me suggest a few resources. Professor Larry Solum, at his Legal Theory Blog, has an excellent series of posts on the subject of the judicial confirmation wars. In particular, I recommend Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy and Breaking the Deadlock: Reflections on the Confirmation Wars. Professor Solum is a self-avowed neoformalist, meaning that he advocates a formal method of constitutional interpretation (e.g., resort to text, structure, historical meaning, and the like to determine the meaning of the Constitution). I always find Professor Solum's writings to be fair, balanced, and extremely informative.

For a good background on partisan entrenchment, I suggest Jack Balkin and Sandy Levinson's article Understanding the Constitutional Revolution. Professor Balkin approaches constitutional interpretation from the opposite end of the spectrum of Professor Solum: Balkin is a realist, meaning that he acknowledges the role of political ideology in the law and judicial decisionmaking. Formalists claim that legal realism is not true to the rule of law; realists respond that despite what formalists say, formalism isn't how the law really works. All of this is, of course, greatly simplified here. If you want a backgrounder on the tension between formalism and realism (this alignment corresponds, roughly and imperfectly today, with "conservative" and "liberal" viewpoints, though this is not necessarily so, and hasn't always been historically), have a look at Professor Solum's series of posts on neoformalism. It is actually a point-counterpoint between Professor Solum and Professor Balkin. Very informative, and also at times humorous. I hold Professor Balkin's work in the same high esteem that I do Professor Solum's work. (Disclosure: I had the very good fortune to have Professor Balkin as my Criminal Law professor in my first year of law school...let's just say that was "many years" ago!)

As to the present day, the situation with the Supreme Court is, indeed, very interesting. I agree completely with Mr. Rowe: President Bush will appoint at least 3 Justices. Justices Rehnquist, Stevens, and O'Connor will all retire sooner or later, but before President Bush's term expires. I see a strong fourth retirement possibility in Justice Ginsburg, too. The possibilities are endless, and this is complete speculation, but let us suppose that Justice Rehnquist is the first to announce that he is stepping down. As I see it, the President has a couple of options. He can be patient and bide his time, nominating a strong conservative (I agree that McConnell is a real contender, especially right now...Estrada and Gonzalez are too radioactive...but then again, Bush says he has a "mandate" and the Senate isn't what it was a week ago) to fill Rehnquist's post. He could also nominate Justice Thomas or Justice Scalia, but they, too, would face harsh Democratic opposition and Bush doesn't gain much.

If President Bush doesn't want to be patient (it doesn't seem to be a virtue of his, after all), I have thought about this possibility: nominate Justice Kennedy to take the Chief Justice spot, and fill Justice Kennedy's seat with someone like McConnell. Clearly, this move has both upsides and downsides for the President. Justice Kennedy is usually a reliable conservative vote, though he has well-known libertarian urges from time-to-time that he serves with decisions like Lawrence. I think Kennedy would be rather easily confirmed to the Chief Justice spot. I don't know if he wants it or would take it, and I'm not aware of anyplace where he's given any hints, either. This would be seen, I think, as a good-faith gesture by President Bush, and would give him license to shore up Kennedy's seat with a more hard-liner. I'd be interested to hear what others think about this possibility.

In the grand scheme of things, I think the President can afford to wait. No matter what he does with the Chief Justice seat, he will have a chance to tip the balance when Justice Stevens leaves the Court. The past week's election has assured that the Supreme Court we'll have for the next 10 to 20 years (barring unforeseen deaths or retirements) will be a very different body from what it is today. Stay tuned.