Is "Fine-Grained" Always Better?

A couple of days ago -- it feels like light-years in blog time -- Professor Richard Epstein posted a column at Forbes.com on the Sotomayor nomination.  Epstein had already made clear his disagreement with some of Sotomayor's rulings; this time, he turned his attention to "the serious intellectual weakness in the conservative [as opposed to libertarian] case against her confirmation."  In particular, he argued that judicial intervention is not always a bad thing, and thus that "judicial activism" and "strict construction" are not especially valuable critical terms.  He concluded:

However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.

I know academics are supposed to like careful analysis; I know I do.  And I know there are folks who love the phrase "fine-grained" -- or, in the case of one of my good friends and co-bloggers, "granular."  

But, depending on precisely what Epstein means, it is not clear to me that being "fine-grained" is always a good thing.  As I wrote in my first lengthy post on the Sotomayor "game," sometimes highly technical discussions serve as substitutes or stalking horses for other discussions that are both more incapable of resolution and, in some cases and some senses, less respectable in public discussion: that is, discussions concerning fundamental disagreements over values.  

As I wrote then, both parties have more or less acquired the knack of selecting "qualified" judges for Supreme Court nominations.  With that taken care of, really what many disagreements over nominations come down to is a divergence (or an apparent divergence, driven by the relative extremes in both parties despite vast convergences in the middle) over worldviews or particular substantive issues such as abortion.  But although those broader disagreements often drive the discussion, they have relatively little political traction; they can shore up the base but they can't shift votes.  Moreover, they seem to violate certain norms of political rhetoric concerning judicial nominations.  Polite Senators are expected not to simply say, "I'll only vote for liberal judges," or "I'll only vote for conservative judges."  Instead, they must engage in finer technical analysis, or at least the appearance of finer technical analysis, as a means of arguing that some particular nominee really should be disqualified -- that he or she will be a "bad" Justice because of one speech, or opinion, or memo (viz., Alito).  Lawyers, politicians, and debating society types (who all meet in the middle in some cosmic Venn diagram) may think they are engaging in more substantive and meaningful debate when they conduct their arguments on these terms.  I'm not so sure.  To treat a judge who has issued tons of opinions that more or less meet standard professional specifications (a fairly easy standard to meet, as Posner has written, but it appears to be the one Senators take as their public standard) as "unqualified" because of a stray line in a speech or a single Takings Clause opinion, as in Sotomayor's case, or a single memo, as in Alito's case, strikes me as deliberately missing the forest for the trees.  

To be sure, Epstein could simply be read as wanting to debate Sotomayor on fundamental issues -- just not issues of "judicial activism" or "strict construction."  But his discussion of "fine-grained" analysis, which seems to suppose that if we can just do enough intellectual work, we'll really know whether a nominee ought to be confirmed or not, strikes me as mistaken.  I have, I think (and depending on various factors that will have to await another post), less problem with a Senator who explicitly makes a "no liberal judges" or "no conservative judges" argument than with one who imagines that picking apart speeches and opinions will lead to some deeper truth, some "gotcha" moment.  In such cases, and given the relatively qualified nature of all current Supreme Court nominees, really the only deeper truths we can debate are precisely the ones that will, admittedly, lead to a fairly swift conversational stand-off: liberalism vs. conservatism, pro-choice vs. pro-life, and so on.  It may be dissatisfying to conclude that our most meaningful debates on a nominee like Sotomayor are the unproductive discussions, not the "fine-grained" ones.  But I think it is true.