January 08, 2006

Brokedown Palace

An interesting essay by Robert Post and Reva Siegel at the Yale Law Journal’s Pocket Parts on questions senators should ask Alito, and a response by Randy Barnett here. Post argues Senators should ask nominees to analyze classic cases, like McCulloch v. Maryland. Barnett responds that nominees should be asked to analyze clauses, not cases.

I confess to taking a very cynical view of the Senate’s role in the nomination process: to wit, the effort to come up with a set of tests that help the Senate “deliberate” about judicial philosophy is pointless, kind of like selecting a diet plan for a compulsive over-eater. It doesn’t really get to the root of the problem.
Here are three common sense reasons , wholly independent of the format, why we can expect confirmation hearings to be full of sound and fury, signifying nothing:

1. The Rise of the Base. Hearings aren’t bull sessions on constitutional law, presided over by wise elders. They are orchestrated campaigning by other means. And judicial nominations are one of the best settings for campaigning around. Why? Because the base is the key to elections. Base turnout was at the heart of Rove’s (and Kerry’s) 2004 election strategy. High base turnout correlates with passion. And there’s no better way to get people passionate than to tell your base that the other guy hates the very principles on which our country was founded. Confirmation hearings are the perfect venue for that message. Thus, the script is written—no matter what Alito says.

2. Campaign Financing Laws. Less money goes to candidates, therefore more money goes to issue-groups. That’s the dynamic of federal campaign finance regulation. Which groups benefit? Groups devoted to judicial nominations may be one. Nominations are a perennial issue, and therefore a good investment for reaching out to the party base, since you can expect a consistent pay-off. Plus, nomination groups have a big share of the issue-market. By curtailing money to candidates (in violation of fundamental free speech rights), campaign finance may have the unintended effect of diverting more funds to such organizations—generating a spiraling on-air ad war over judges, and thereby contributing to the sound-byte environment in which confirmation hearings are conducted. Not very conducive to deliberation about constitutional first principles. The lesson: campaign finance laws not only trample free speech, but may undermine the integrity of the confirmation process. (The solution, incidentally, is repeal of campaign finance laws, not more regulation of political speech.)

3. Rational Ignorance. Elected officials, and voters, just don’t have the time to invest in boning up on, say, the constitutional ramifications of Marshall and Taney-era debates over intergovernmental tax immunity, the appointments clause, or Gibbons v. Ogden. Accordingly, their staff won’t invest the time either. Politicians are just that—political, and the confirmation process will always reflect their institutional biases.

People like Randy and Robert would like to see the Senate focus less on politics and more on constitutional first principles, in part because they’d like to see more judges who put principles over politics get onto the Court. I agree. But tweaking the questions won’t do it. Changing the structure of the confirmation process, by getting rid of the filibuster—and its powerfully majoritarian effect on the judicial branch―will.

Links to this post:

Create a Link

<< Home