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Saturday, May 02, 2009

The Purpo$e of Judicial Nomination$

I have written about this before, but the Souter vacancy seems as a good a time as any to reprise this theme.  Of course judicial nominations are about the substance of the judge who is nominated, his or her judicial vision, how that vision reflects and affects partisan and ideological differences about policies, methodologies, and so on.  But, at least since Bork, they are also about -- money.  Groups that organize around partisan issues want and need -- and like! -- money.  Whatever people in DC, of various ideological stripes, may think about things like voluntarism, the free market, socialism, welfare, pay levels, and so on, I think they can all agree on one basic principle: namely, that they would all prefer to be paid large amounts of money by rich people to write op-eds, hold conference calls, and go on CNN or FOX News.  Some of them are more or less unfit to do anything else.  Others could be academics, but would prefer to be closer to the action and not have to deal with students.  So they fund-raise.  That fund-raising is not going to be as successful unless they can more or less continuously convince their supporters that any given moment is THE crucial moment, that the forces of darkness are one step away from permanent victory, and that only a donation can help stave off defeat.  ("Oceania has always been at war with Eastasia....")  


As is often the case, this goes for both sides.  If I find no little irony in the way that many conservative believers in the free market and, you know, working for a living, have managed to set themselves up in DC by sucking on the teat of private donors without having much to show for it, I am sure similar ironies can be found in prominent DC liberals who have found a way to do very well, year in and year out, without doing all that much good.
I am reminded of this simple fact about the production and maintenance of ideological disputes, and the care and feeding of those who thrive off of them, by today's article in the New York Times about the Souter vacancy and the projected fight over his replacement.  In that article, just to start on the liberal side of the ledger, we find this paragraph:

Mr. Obama’s advisers said they were prepared for this fight and were ready to use the resources of Mr. Obama’s political organization, including its expansive e-mail list, to rally support for whoever he nominates. Liberal groups said they were gearing up not only to fight conservatives but also to make certain Mr. Obama puts forward a liberal choice.


Just a reminder: change one vowel, and "expansive" becomes "expensive."  For the mailing list to remain useful and to serve as a source of party donations as well, it becomes necessary to regularly "rally support" on some issue; such lists, and the groups that generate them, ultimately have little other raison d'etre.  Similarly, although I'm sure that liberal groups would say that a "liberal choice" is a "good choice," it's no accident they're focused on the former rather than the latter.

Conversely, the article also features a quote from Wendy Long of the conservative Judicial Confirmation Network: “There could not be a better issue to latch on to for a Republican renaissance to start building on — drawing some distinctions on issues . . . . I hope for and I expect a fight.”  This quote, too, just about speaks for itself.  Long does not want an acceptable or good nominee; she wants a controversial nominee.  Too much damn consensus, and the Judicial Confirmation Network will have to start lowering salaries.  You will not be surprised to learn that the Network's web site features the usual prominent fundraising button, or that Long says on the site that the current Supreme Court is "a liberal, judicial activist court" (take that, Chief Justice Roberts!), or that she calls potential nominees like Sonia Sotomayor, Diane Wood, and Elena Kagan "radicals" -- a label that makes little actual sense except as a means of whipping donors into a frenzy.  

I assume both sides will get what they want -- a fight.  And I assume that even if the nominee doesn't warrant a fight, on either side, there will be one anyway.  The $take$ are too high for anything less.     

Posted by Paul Horwitz on May 2, 2009 at 03:17 PM in Paul Horwitz | Permalink

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