« Ford arguments | Main | Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster »

Monday, October 12, 2020

Standard Arguments Against Confirmation (Alas)

At least for the past 33 years, two arguments seem to lead the pack as standard justifications for voting against a judicial nominee, especially a Supreme Court nominee, who is otherwise "well qualified" for  the office:

1) "Extreme": The most popular, because most generally and easily applicable, begins with the acknowledgment that the nominee may be otherwise well qualified for the office, and that the person opposing the nomination does not object to the fact that the nominee is conservative, or liberal, or what have you, as such. But this nominee is not just conservative/liberal/what have you: He or she is "extreme" in his or her views, and those extreme views are "disqualifying." (Here is a recent example.) 

2) Scandal: The other standard argument is that regardless of the nominee's other qualifications or of whether the nominee is or isn't "extreme," he or she has done something that is scandalous, improper, illegal, or what have you, but in any event so bad that the nomination should not go forward.

Stipulate that either of these may, in fact, be good reasons for voting against a nominee and that there are nominees for whom, on almost any reasonable reading, one or the other reason may apply. It remains the case, it seems to me, that both of these arguments are bad standard arguments. That is, whether or not they are sufficient reasons to vote against a nominee, they should not be held up as the standard primary arguments or, which ends up coming to much the same thing, treated as necessary arguments.  

That's not because they're wrong in themselves, but because the incentives involved are damaging and arguably not wholly within the conscious control of any senator, let alone the Senate as a collective body. If the supposition is that a "well-qualified" nominee is entitled to confirmation unless he or she is extreme, and a senator wants to vote against that person for the obvious reason that he or she is likely to cast votes that the senator doesn't want, of course one will describe the nominee as extreme. There's not much of a penalty for getting it wrong predictively, and since "extreme" is a standardless word, it's not clear what getting it wrong means as a descriptive matter. Indeed, given its malleability, the influence of epistemic bubbles, and the number of people who have decided that their mission in life is to move the Overton window, the senator may even come to believe that the nominee is "extreme" even if he or she didn't start with that belief.

As for scandal, there are reasons to take it seriously. But absent a clear standard and burden of proof, reasonable but strictly observed time limits, and other controls, relying on this as the other major justification for a negative vote will at a minimum lead to protracted confirmation processes in the hope that something will eventually emerge that "raises serious questions." On the margins, there will of course also be questions about what is or isn't scandalous, questions that are subject to the same cognitive effects. (I think this line of attack will have a number of other negative effects. I think the character of office-holders matters, But I doubt that a trend in which anyone entertaining the idea of public service is encouraged to order his or her life to conform to the Boy Scout oath is a positive one even for those who care sincerely about the character of office-holders. It does not follow that if having office-holders of good character is good, demanding office-holders of superficially unblemished character must be even better. But I'll rely here strictly on the basic point.)

People often bemoan party-line votes. But it's not clear to me that they are as damaging to the process, or to the federal courts, as a system in which people profess loyalty to the proposition that a well-qualified nominee should be confirmed but then must perforce frame a "no" vote in terms of the "extreme" or scandalous nature of a particular nominee. On the whole, I like the proposition that a well-qualified nominee should be confirmed. At least I would like it, if I felt I could trust senators to abide by it and not rely on escape hatches, or if I felt that the media environment was such that disingenuous statements would be treated as such rather than amplified.

Without that kind of environment, it seems to me that I would vastly prefer a senator to call a nominee well qualified and vote against him or her explicitly on the basis that the nominee might rule in a way the senator doesn't want. Perhaps the counter-argument is that there is a constitutional "norm" or "settlement" or "convention" favoring the confirmation of well-qualified nominees. And I believe in the value of constitutional norms, and am delighted that the renewed interest in them reveals a deep and abiding love of tradition. Who knew? But if that's the norm (and one should generally be suspicious of any specific invocation of constitutional norms), it's a bad one, at least unless it is observed by people of character. Under the circumstances it would be preferable for senators, who are politicians, to cast political votes. It would save a lot of fuss and bother. But they should be openly political votes.         

Posted by Paul Horwitz on October 12, 2020 at 06:02 PM in Paul Horwitz | Permalink


The comments to this entry are closed.