Bazelon Short Circuits; or, Exhibit #233 on why it’s Often Misleading to Rely on Party of Nominating President to make Characterizations about Judicial Politics
posted by Kaimipono D. Wenger
In the middle of an otherwise reasonable enough Slate article, Emily Bazelon takes this little trip into The Land Without Logic:
The vacancy Southwick has been tapped to fill is on the Fifth Circuit, where 11 of the 15 sitting judges are Republican appointees. Given Southwick’s history as a state appellate judge—not just the sound bites, but the overall pattern—why should the Democrats further imbalance an imbalanced federal court by making him into a peace offering?
What’s the problem here? Let’s take it step by step.
Bazelon gives a single fact, a single normative suggestion, and some implied analysis. To break them out: Our single fact is that 11 of 15 judges are Republican nominees. Fair enough. Our normative suggestion is that Democrats should not further imbalance an imbalanced court. Again, standing alone, this sounds reasonable enough.
To connect the two, Bazelon offers an interpretation. Because it has 11 Republican nominees, the Fifth Circuit is “an imbalanced federal court.” This conclusion may be controversial, but let’s accept it on face value. This conclusion relies on an unstated assumption — namely, that some undefined level of Republican nominees (a majority, or perhaps some level of supermajority <= two-thirds) will of necessity create "an imbalanced federal court." Call this the Bazelon Premise.
Now recall our normative proposal: Democrats should oppose any attempt to "further imbalance an imbalanced federal court." Thus, suggests Bazelon, they should reject Southwick. The problem is, Bazelon doesn't go far enough.
After all, any Bush nominee will be a Republican nominee. Thus, per the Bazelon Premise, any Bush nominee will further imbalance the court. Instead of 11 Republican appointees, there will be 12. It follows that any Bush nominee should be opposed. It doesn’t matter whether he nominates Leslie Southwick or the Dalai Lama. Any Bush nominee will of necessity further imbalance the court, by sole virtue of being a Republican nominee — and so Democrats should oppose them all. This is really the only logical conclusion, once one accepts the Bazelon Premise.
Of course, this is a silly conclusion. That is because the Bazelon Premise is silly itself — or rather, it’s terribly simplistic and unnuanced.
Unfortunately, it’s not the first time this particular brand of sloppy reasoning has entered the debate on judicial nominees. A few years back, in a truly dazzling display of histrionics, the Alliance for Justice breathlessly warned against the likelihood that President Bush would nominate “extreme right” judges — which turned out to mean, per AFJ methodology, Republican-nominated judges. (Really!)
The political party of the appointing president is at best a somewhat-above-average indicator of how a judge will rule. Other factors, such as the composition of a panel, are more determinative. See, e.g., Revesz, 83 Va. L. Rev. 1717 (discussion of political ideology and political party of appointing President). Well-known exceptions abound, and exceptions seem especially prominent among Republican appointees. Blackmun, anyone? Warren? Stevens? Souter? That ninth-circuit fellow who invalidated the pledge? All “controlled by the extreme right.” . . .
The best part of all: Per AFJ “methodology,” no matter who Bush appoints to the D.C. Circuit, it will become “controlled by the extreme right.” That’s because the only indicator of right control is the appointing president, and Bush is (you got it) a Republican. So he could appoint Bill Clinton. Laurence Tribe. Charles Ogletree. Catherine McKinnon. Hell, he could re-nominate Ronnie White, and it would go down as a win for the extreme right, per AFJ methodology. Incredible.
I’m not surprised to see that kind of analysis from a political group, but Bazelon is too good and too consistent of a writer and analyst to be making the same mistake. Let’s hope it’s a one-time thing — that Bazelon digs up a copy of Revesz’s article, and abandons overly simplistic assertions about judges and nominees.
June 5, 2007 at 11:29 pm
Posted in: Politics
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Responses (3)
Scott - June 6, 2007 at 12:11 pm
Good post until the end. I’m a regular Slate and Bazelon reader, and while she is “consistent” I don’t find her to be “too good,” unless one agrees that an activist posing as a court observer is somehow a “good” thing AND one agrees with the direction of the activism. The flawed reasoning is indicative of her abilities as a writer, it is not contrary to them.
Frank - June 6, 2007 at 1:57 pm
When you say:
“The political party of the appointing president is at best a somewhat-above-average indicator of how a judge will rule. Other factors, such as the composition of a panel” matter more.
How does the “composition of panel” variable work? What does it refer to?
anon - June 6, 2007 at 3:57 pm
Your critique is technically true but still somewhat unfair. The political party of the appointing president has been historically only a somewhat-above-average indicator, but these days is becoming an extremely good indicator due to the increased vetting of judges. And yes the methodology is flawed in that Bush could theoretically appoint Brennan to a court — except until you realize that, given modern reality, Bush will never appoint a Brennan to a court.
In the modern judicial appointments game, if you know nothing about the candidate except the president making the nomination, you can have a pretty good guess at his likely votes as a judge. Does this mean that Bazelon is urging the Senate not to confirm anyone nominated by Bush? Perhaps, but only if you take her position to hard-to-defend extremes, as any position is prone to become at the extremes. And the flaw in her position is not that Bush’s nominees may not be conservative (they are and will be), it is that the downside of confirming conservative judges (to everyone except the most die-hard liberal) is not as great as the downside of bring the federal judiciary to a standstill.
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