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Thursday, November 10, 2005

Manning on "Balance" on the Court

My apologies to those who have noticed my silence this week (a class of one, I think -- sorry, Mom!).  I just returned from a weekend conference to all kinds of duties.  But let me pass along this link to an op-ed in the Times today by John Manning, who now inexplicably has chosen to teach at Harvard Law School but who once, in brighter times, was one of my profs (or prawfs, I guess, or whatever) at Columbia.  His point is well summed up in his opening paragraph:

"Some Democratic members of the Senate Judiciary Committee have argued that Judge Samuel A. Alito's nomination to succeed Justice Sandra Day O'Connor merits more thorough scrutiny, if not outright rejection, because it would disturb the "balance of the court." Whether Judge Alito will in fact shift the Supreme Court to the right on any matter is unknowable. But whatever kind of justice he may turn out to be, the premise of some ideal and inviolate balance of the court cannot be grounded in principle or put into practice."

A nice piece, generally.  My only complaint is that, by making the argument that "no rational basis exists to believe that the present ideological composition merits greater respect than that of any court that has come before or, more important, of any likely to follow," Manning may be making the error -- really, part of a broader and I think unwise tendency in recent years -- of turning into law-talk what is, in fact, a conversation about politics, ideology, and jurisprudence.  Discussions about politics, values, and even jurisprudence can't be settled by appeals to legal standards or modes of argument, and I doubt they are improved or rationalized by efforts to do so.  Of course Senators may vote against a nominee if they are reasonably content with the current balance of the Court and/or worried about a shift (rightward or leftward) in that balance.  This is a political decision, and can't be settled by asking whether a rational non-political basis exists for preferring one "balance" over another.

Of course, part of the reason Manning can make this argument is that the Democrats (and the GOP too, I think) have given him the tools to do so.  Although Senator Schumer was schooled at the feet of Professor Sunstein, who told the Senate Democrats they ought to feel free to vote down nominees on an ideological basis, he and the other Senators are still reluctant to do so openly and clearly.  Instead, they search for language that makes them look as if they are acting non-politically and that their votes are compelled -- "not enough information," "out of the mainstream," "preserve the delicate balance," etc.  If Manning is wrong to treat a political matter in the language of the courts, so too are many Senators wrong to obscure the nakedly -- and legitimately -- ideological and political nature of many of their decisions.

Still, read it all, as they say.

Posted by Paul Horwitz on November 10, 2005 at 11:19 AM in Law and Politics | Permalink


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Manning has missed the point of these questions--or has chosen to ignore them in order to convince anyone listening that it is illegitimate for liberal senators to ask. What conservatives are praying right now is that moderates and liberals don't awaken to how radical a prospect we are facing in this nominee. But imagine what the last decade and a half would've been like in American law if Justice Scalia had not only his own vote to cast, but also Justice O'Connor's. The framers gave the Senate this decision because they meant it to be, as they say, a political process. If the Schumers of the world want to hold this nominee to an ideological acceptability standard, they should do so: Manning's rational basis test is as misplaced as he is in Cambridge.

Posted by: jamison Colburn | Nov 10, 2005 7:14:01 PM

I was puzzled by Manning's piece. I have not heard anyone argue that the Constitution requires a particular distribution of views on the Court. Few believe it is healthy for one political party to dominate both the Executive and the Legislative branches, because such domination makes the minority perpetual losers, leading to alienation and resentment. Better that two parties are forced to find common ground. Similarly, it might be better to have a Court in which justices actually have to reach across ideological divides to form majorities rather than either rest comfortably in the knowledge that they have four votes in the bag or throw up their hands knowing their views ultimately don't matter. The result will be narrow decisions that do not radically alter the legal landscape in which everyone, winners and losers, have to live. I don't know if that view is the right one, but it seems coherent and plausible.

Posted by: Adil | Nov 10, 2005 11:43:49 AM

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