(The Return of) Ignatz, by Sam Heldman

Thursday, January 09, 2003

Having no Senator myself (because I live in DC), I am not in much of a position to tell any U.S. Senators what to do. But if I did have one, this is what I would tell him or her:
if there's only enough mojo for a small number of filibusters on judicial nominees, don't use up much of that mojo on Judge Pickering
My reason is simple and practical: Judge Pickering is, right now, a U.S. District Court Judge in his mid-60s. He will have, one would guess, not that many more years on the bench, and certainly not that many more years before taking senior status (which would allow the then-current President to name a successor). He would have more of some sorts of power, during those next not-so-many years, on the Court of Appeals; but on the other hand, he's got plenty of power now on the District Court and can stay there as long as he wants. So the marginal increase of Bush-political-influence-on-the-bench by virtue of elevation to the Appeals Court, over the remainder of his judicial career, pales in comparison to the marginal increase in influence that would be created by the appointment of (say) someone around 40 yrs old who does not already have a lifetime appointment to the federal bench.

Now I recognize that more is at stake here than just lawyerly rough calculations of expected practical impact on judicial decisions. There is symbolism, and politics, and there is also PRINCIPLE at various levels, not just the sort of practical calculus that I mentioned above. But the practical calculus ought to have a good bit to do with it, I think. Now, I don't think that "no" votes are a limited resource; each Senator can and should vote against any nominee that he or she thinks should not be confirmed. But unless liberal Democratic Senators are prepared for quite a few filibusters, I would urge that they save their energy for younger nominees who are not already enjoying life-tenured positions on the lower courts.

But maybe filibusters are like bicep curls -- doing them creates the strength to do more of them? If anybody who knows a lot about politics tells me that that's the case, then I'll rethink my theory.


I know that what I have written above will seem weak or even unprincipled to those who oppose Judge Pickering's elevation because of particular things about him: a belief that he is a racist, most prominently. But what I'm trying to get to, here, is a way of discussing judicial nominations that is more openly based on ideology -- and more precisely, our best predictions as to how the nominee would, if confirmed, impact the course of the law -- and not on other things about the nominee personally. I prefer that mode of discussion of nominees, rather than the more "personal" mode of discussion -- in which opposition to nominees is often framed as an attack on the ethics of the nominee, or the subjective and high-stakes question of whether he or she is a racist, or a sexist. One reason I prefer the openly ideological mode of discussion is that I think -- I hope -- that framing the debate in these terms would help lawyers feel unafraid of publicly stating their opinions about nominees. As it stands, there is something potentially intimidating, to lawyers, about taking a stand on nominations -- the old saying, "if you're going to jump the king, make sure that you kill him", or in other words "woe unto you if the nominee whom you opposed gets confirmed!" I do trust that judges try very hard not to hold grudges against those who opposed their nominations. But I think that the grudges would be tinier -- even non-existent, I hope -- if opposition to nominations could be framed explicitly as "I'm not saying he's a crook, not saying that he violated canons of judicial ethics, not saying that he's a racist -- none of that is the basis for my opposition. What I'm saying is that I think based on his record that he would tend to vote for such-and-such kind of decisions, and I would very much prefer judges who would vote the other way." This, by the way, is why I feel comfortable being perhaps the first and only person to publicly oppose the seems-quite-likely-now nomination of Ala. AG Bill Pryor to the Eleventh Circuit. I don't think he's a crook, I don't think he's unethical, I don't think anything bad about him personally; I just think that his view of law is extremely different from mine, and that he knows as well as I do that judges have much room to make law. I expect that he would make decisions with which I disagree, more often than not, when there was room for disagreement. As long as I can frame my opposition to his apparent candidacy in this way -- as long as this is seen in the political world as good-enough reason to oppose a judicial nominee -- then I have a reasonable faith that, if confirmed, he won't hold a grudge. And I would do the same as to Judge Pickering, and Justice Owen, and Mr. Estrada: I'm not saying that they're crooks, I don't want to make this personal in any way, but I'll bet dollars to donuts that they would send the law in a more conservative direction, and I vigorously oppose that.

posted by sam 12:07 PM 0 comments


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