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Thursday, September 15, 2011

On the Virtues of Just Saying No

Brian Leiter links to this story about the stalled nomination of Janet Levin to the Tenth Circuit.  Levit is the dean of the University of Tulsa's law school.  Her background is in international trade and finance, and includes work for the Export-Import Bank of the United States and in private industry.  According to the story, Coburn, who believes judges should not look to international law in making decisions, was concerned about her background in international law.

If that's true, it's pretty close to absurd.  There is, of course, a debate about whether judges should look to international law in deciding constitutional cases.  And there are broader debates out there about the legitimacy of customary international law in particular, although what the latter debate has to do with being a federal judge is beyond me.  But I am unaware of any sane sentient being who thinks that there is no such thing as law touching on international affairs.  An entity like the Export-Import Bank must, of course, be aware of the variety of domestic laws affecting United States entities engaging in international trade.  And it must be aware of treaty obligations binding on the United States by virtue of Senate ratification of those treaties.  But those laws have no bearing on the general debate about judicial reference to international law in constitutional interpretation.  Coburn is welcome, of course, to ask Levit whether she would look to international law in interpreting the Constitution.  But simply blocking her because she's been exposed to international law, especially when most of that law is of unquestioned legitimacy, is generally domestic law, and has nothing to do with the Constitution is bizarre.  Does Senator Coburn think there is some kind of international law cooties problem?  First you're leafing through the OFAC regulations, and the next thing you know you've turned into Anthony Kennedy?  

This episode persuades me yet again that there are times where the general norm of reason-giving that seems to have attached to judicial nominations can have bad effects.  Senators are entitled to refuse to confirm judicial nominees for bad reasons or no reason at all.  (They're entitled to block them for the same reason, in my view, although there are good independent reasons for us to disfavor the use of blocking tactics.)  The idea that they're obliged to provide good reasons to oppose a nominee sometimes leads them to adopt reasons, with or without candor, that help introduce foolish ideas into the public discourse about judging.  Conservative nominees like Miguel Estrada are treated to the Bork narrative, in which they're not only conservative but lawless and inhumane.  Liberal nominees are treated to a narrative in which the very idea that judges are obliged to "make" law in the absence of an unambiguous constitutional text becomes some form of sweeping lawlessness of its own.  And in both cases, the opponents reason from anecdotes in a way that turns one questionable decision into a total abdication of any possibility that these individuals are capable of reasonable judging in any case.  Surely there are some cases where the assumed requirement of reason-giving does more harm than good.  I would rather have a senator declare that he or she opposes a nominee for strictly political reasons, or just out of spite, than to have that senator give transparently silly reasons--like the notion that having knowledge of and experience in international trade and finance renders a nominee unfit to interpret FIFRA.   

Posted by Paul Horwitz on September 15, 2011 at 08:56 AM in Paul Horwitz | Permalink


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Paul- I agree that the reason stated by Coburn is, at best, dumb, but given his track-record on this issue, and the general state of things on this issue in Oklahoma, and what else we know about Coburn, is there any reason to think that his publicly stated reason, dumb though it is, isn't genuinely held by him? Would it matter to your account if that were so?

Posted by: Matt | Sep 16, 2011 10:59:33 AM

Paul, thanks for the extended and interesting discussion. I'll just add this at the end: I think we agree more than I originally thought. I agree with the observation that instituting rules can encourage people to try to avoid the rules, which at time can have worse effects than not having the rules at all. My main issue, I think, was that you seemed to be saying that because of this voters should abandon their behavior that leads to the rule. Since it seems that that's not what you were saying, I think I can get behind your argument at least as a theoretical matter: it would be better if Coburn had said he was opposing the nomination for political reasons, though I don't know how we could restructure political incentives to actually shift behavior in that direction.

Posted by: Andrew MacKie-Mason | Sep 16, 2011 8:43:24 AM

Great and tough questions; I'm not surprised they come from either of you, especially my friend Micah, a scholar on reason-giving. Without being too sure that I'm not simply wrong, I do think there is something to be said for what I'm trying to say, but I may be saying it poorly; in fact I'm sure I am. Let me take one final crack at it, and if it's still unsatisfactory I'll still leave it at that.

Andrew asks how I can say it's OK for people to disapprove of politicians giving political reasons for their confirmation decisions, yet say that the norm of giving non-political reasons can be harmful, since the norm of giving non-political reasons develops in part from political pressure to give non-political reasons. How, then, can I approve of the practice and disapprove of the norm it creates?

I think my answer is something like the following. I believe that in some contexts, a broad set of "reasons" should count as permissible ones, as not ruled out of the debate at the outset. Where a politician has discretion to simply vote yes or no, I think he can do so. Where the politician has discretion to base his reasons on political views, I think he should be able to. I also think politicians are entitled to give proper reasons for a decision. In all cases, I think the decision-maker is obliged to do one thing: to decide in accordance with his constitutional oath. I would like to think that the oath demands some candor, at least at a moral level, but I don't think it necessarily demands a full set of public reasons having nothing to do with politics or morals. I believe voters have an obligation to consider what politicians say about these things (or the fact that they say nothing) -- not necessarily because they conclude that the politician has failed to give "permissible" reasons, but because they are entitled to accept or reject a broad set of reasons, including political ones. So I see a broad range of "permissible" answers to these questions, including the option of just saying yes or no without elaboration; and I see a broad range of possible citizen responses. And my particular concern is something like the idea that some politicians, because of the norm of providing full, non-political reasons for a decision, end up creating justifications that are in some way harmful in and of themselves and may have secondary effects. A politician who wants to vote against a Democratic nominee because he thinks that nominee will be too "liberal," or who just doesn't want to give the President of another party another judge, often ends up putting his argument in broader and seemingly more principled terms, although those terms can be absurd: nominees ought not know anything about international law, ought never have worked for partisan organizations, ought never have represented the wrong sort of client, and so on. It's true that there's a reason those politicians supply such reasons: as Andrew says, there's a norm out there that develops from political pressure by those who disapprove of purely political justifications. I would say that I would rather that these politicians answer with relative honesty and integrity than that they feel compelled by the standard non-political public-reason norm to give something that takes that form, when their real reasons are more elemental and political. Just as I think citizens have an obligation to scrutinize what politicians say and act accordingly, so I think legislators have some kind of obligation to give their "real" reasons, even if those reasons are blunt, political, or brief, and that we may be better off if they do than if they give contrived reasons in order to comply with the norm: better both because we'll have a more honest basis for discussion and because, at least where they're not the real reason, politicians will be less inclined to give reasons that have harmful spillover effects and end up influencing our rhetoric of discussion about nominees in ways that distort the debate. I think this is a normative vision that doesn't have strong political incentives to behave this way; the incentives I have in mind have more to do, I think, with the internal virtues of officeholders.

Micah, I have fewer responses to give to you here because 1) I have to think harder about my answer and 2) hell, I should be seeing you soon; we can always continue the discussion. For now, I'll say this. Depending on how you define things, I either think that reason-giving norms are not appropriate in every circumstance of political discretion to decide, or that in some circumstances what counts as an acceptable norm should be broader and can certainly include basely political reasons. I agree that there are costs to a regime of giving no reasons, although I think my point still holds that there are real-world reasons why a reason-giving norm that demands that those reasons for rejecting a nominee be "generally acceptable" can end up encouraging the offering of norms that take on a damaging memetic force. Both must be considered. In my view, in some cases giving no reasons, or political reasons, may be better for the system than always demanding "good" (in the sense of generally acceptable and non-political) reasons. Better, I suppose, because it's more honest and because it allows us to see, parse, and evaluate the range of real reasons more clearly. So maybe my argument is in part about the value of candor in reason-giving, although I'd have to think about that and about what I mean by candor in these circumstances; or maybe it's about the value of not squeezing the permissible reasons into too narrow a set of categories, particularly where in my view politicians actually have a wider range of reasons available to them, including "I won't vote for a Democrat/Republican"; or maybe it's that in some cases I believe the political/constitutional system is better off for acknowledging the rawly political nature of some discretionary decisions rather than treating only certain kinds of reasons as within bounds; or maybe it's more broadly about our differences in what count as the set of permissible "reasons" in these circumstances. I'm speaking somewhat in the abstract, and I agree that in the regime I'm discussing, citizens have a continued obligation to decide what they think in particular cases, and politicians may feel obliged to put their answers into the form of (flimsy) reasons, reasons that may have bad spillover effects. As with my views about the permissibility of religious reasons in public debate, I envision a messier system but I think that messy system has its own virtues, as opposed to cutting off certain kinds of reasons altogether.

A very partial and doubtless still jumbled answer, but it will have to do for now given other obligations. Thanks for pushing (and pushing) me on this.

Posted by: Paul Horwitz | Sep 16, 2011 8:14:47 AM

Paul, I think where I'm not clear is this. You say it's ok for people to generally disapprove of politicians basing confirmation decisions on politics. But you also say that the norm of giving non-political reasons can be harmful. Given that that norm probably develops (at least primarily) from the political pressure of those who disapprove of political justifications, how can you approve of the practice and disapprove of the norm it creates?

Posted by: Andrew MacKie-Mason | Sep 15, 2011 5:36:48 PM

Paul: The form of this argument seems to go something like, Demanding good reasons leads to officials giving bad reasons, which some people who are impervious to reasoning will wrongly believe. And so we should not demand good reasons.

But why isn't the answer: officials should stop giving bad reasons. Or don't give bad reasons strategically? If you know a vaccine has an incredibly low risk of harm, and that the risk is enormously outweighed by the benefit, then don't insinuate the harm. Indeed, that seems to be exactly how this particular example is playing out.

I think you're thrown off here by the idea that it's ok for politicians to use any arguments that will persuade others, no matter how bad the arguments are, provided others will believe them. But why should we accept that view?

People can't be responsible for all the effects their good arguments might have, but it seems reasonable to hold them responsible for what they know to be bad arguments designed to persuade people who they believe won't distinguish good from bad claims. That's just straightforward manipulation. The fact that people engage in such manipulation doesn't seem like a very good reason to condemn the practice of sincere reason giving.

Another thought: we should also weigh the costs of manipulation under a reason giving regime with the costs of having no reasons, which haven't gotten any attention here so far.

Posted by: Micah Schwartzman | Sep 15, 2011 5:19:25 PM

Interesting comments. Andrew, it may be that I just posted too quickly, so the confusion is mine and not yours. But let me give a quick response. I *think* I am OK with everything in your summary except this sentence: "Therefore people shouldn't criticize Senators who forthrightly state that they're opposing a nomination for political reasons." I think senators are entitled to oppose a nomination for political reasons and to say so, and I think we are entitled to disapprove, either generally or because of their politics and ours. I appreciate that that leaves a messy political situation, but I'm fine with that. This is a quick response and doubtless raises more questions than it answers, but time presses and I'll leave it at that.

Micah: again an answer that's too quick. I think the underlying concern in my post is that certain kinds of reasons, even if many cognoscenti think of them as transparently contrived, can have bad spillover effects. They can take on a life of their own and create new norms or lines of rhetoric that are as harmful, or more, than just saying "no." Perhaps the pros won't fall for them, but others will; perhaps they'll prove (or seem) successful enough that they end up perpetuating themselves. Perhaps even the pros will come to believe them. Let me give an example off the top of my head, even though it's an imperfect one. Say someone believes that vaccinating children against STDs that increase the risk of cancer is wrong because it interferes with parental rights, or because it gives seeming license to childhood sexuality. For whatever reason, they think those reasons aren't enough to persuade enough people, or will persuade some but offend others. They add another argument: these vaccinations are wrong because they have a risk of causing harm to some recipients, including death. That argument may be dead wrong on the facts; or it may be of questionable value, but of decidedly secondary importance to the person making it. But it may also metastasize, so to speak, leading a number of people to become convinced that this or other vaccinations are not just wrong for moral reasons, but physically harmful. Those people may be impervious to evidence refuting the argument. Again, for a variety of reasons it's an imperfect analogy. My point, though, is that although I think people are still entitled to reject a simple "no," or to argue that only serious and sufficient reasons can justify a discretionary political decision like whether to confirm a nominee, I also think that the tendency (which I do believe exists, whether for strategic or other reasons) to demand a more complete set of reasons than a simple "no," or "because I'm a Democrat/Republican," can give rise to a set of reasons, like the ones I mention in my post, that distort the issue at hand and, just as importantly, end up taking on a life of their own.

Posted by: Paul Horwitz | Sep 15, 2011 4:33:01 PM

It seems like the problem isn't a norm of reason-giving. The problem is rather about what counts as a good reason in this context. Since political reasons aren't acceptable reasons (though I'm not convinced this is descriptively accurate), we get ... spectacularly bad reasons? As if the latter aren't obviously stalking horses for the former? Does anyone understand them as anything else? An alternative view is that the problem isn't with reason giving, but with the people giving the reasons. And if the latter, then maybe the proper response isn't to criticize the underlying norm, but the failure to satisfy it. On this view, the reason giving norm has done it's job. It's made it possible to criticize a bad actor for what seems like an unjustified decision. That's a good effect.

Decisions about which judges to reject are important decisions, not the kind that should be unreasoned. In fact, they seem like exactly the sort of decisions that we want our political officials to explain. And if they can't, we want to be able to hold them accountable for that.

Paul says: "I would rather have a senator declare that he or she opposes a nominee for strictly political reasons, or just out of spite, than to have that senator give transparently silly reasons..."

No one prefers obviously silly reasons to political reasons. But that's perfectly consistent with thinking that some reason is better than none. These aren't the kind of decisions that should be based on spite, silly reasons, or arbitrary grounds. We can rightly demand more.

Posted by: Micah Schwartzman | Sep 15, 2011 3:57:57 PM

Paul, I largely agree with your response, but (and perhaps thisis misinterpretation on my part) I took your original post to be making a stronger claim. To paraphrase:

Many people think politics is an unacceptable reason to refuse to confirm a judicial candidate. This creates a norm that requires Senators to offer more substantive justifications. Those justifications are often silly, which harms public discourse. Therefore people shouldn't criticize Senators who forthrightly state that they're opposing a nomination for political reasons.

I don't think that argument works, but first: is it basically what you were saying?

Posted by: Andrew MacKie-Mason | Sep 15, 2011 12:03:00 PM

I take your point, Andrew, and of course I agree that the public has a responsibility to weigh the reasons provided. But: 1) I don't think "reasoned decision making" as we usually conceive of it is always required; 2) I think politics arguably falls within the acceptable set of "reasons" for discretionary decisions of this sort; 3) I would rather that politicians be up-front about their politics rather than putting them behind a veil of reasoned elaboration; and 4) I worry that sometimes, the kinds of reasons they provide are themselves unhealthy. That last point brings us back to public responsibility, of course, and I would agree with you that it is always a feature.

Posted by: Paul Horwitz | Sep 15, 2011 10:43:41 AM

I have to disagree with you here. If there's damage to public discourse, it's because of a failing of the public to properly evaluate Coburn's claims. Instead of pushing for people to abandon reasoned decision making, we should encourage voters to become more reasoned themselves and throw Senators like Coburn out of office for things like this.

Posted by: Andrew MacKie-Mason | Sep 15, 2011 10:38:37 AM

Two corrections: 1) Dan Filler put up the link, on the Leiter Law School site. Thanks, Dan. 2) I seem to have some difficulty making up my mind about the nominee's name: it's Janet Levit. Mea culpa.

Posted by: Paul Horwitz | Sep 15, 2011 10:21:10 AM

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