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Monday, March 21, 2022

A Scandal or an Extremist/Utterly Brilliant and Wonderful

I gather the confirmation hearings for Judge and nominee Jackson begin this week. Ilya Somin argues in the VC today that confirmation hearings, although flawed, "serve useful purposes." Although I am sure he has considered views on the topic, to me this is not quite the right question. One should ask, rather, whether their useful purposes outweigh their detriments. More to the point, I think, is the question whether the optimal mix of pluses and minuses is not achieved by a paper confirmation process without the appearance of the nominee, whose function, it seems to me, is to say as little that is interesting as possible as briefly as possible while offering the Judiciary Committee the opportunity to say nothing interesting at all at much greater length. There is also something to be said for the power of the polite, disruptive "no." As I've said before, I think the whole pattern of norms and expectations and power relations--including those between the White House and the nominee--would be well served if at least one nominee would decline to appear and invite the Senate to judge his or her merits on the basis of the extensive nomination materials that are filed.  

In any event, all this is a motivation and excuse for me to pull something out of deep freeze. Spurred by an early post of Howard's several weeks ago, I wrote a post on what will happen in this or just about any other confirmation process for a Supreme Court justice--"process" being perhaps the operative word, since only a very little bit of it happens in the confirmation hearing itself. I'm not sure that much that I've seen in the coverage, which I've looked at only spottily, requires significant changes to what I wrote in the first week or two after Jackson's nomination, although I've added a note here and there. It's unduly lengthy, for which I'm only semi-apologetic. I wanted to collect all my thoughts so I could, in effect, get rid of them and worry about other things. Here goes.

* * * * 

I have not read more than the first sentences of Howard's post below, but they spur me to do something I have been meaning to do for the last few days: Discuss the positions taken now and that will be taken through the culmination of the confirmation process for Judge and Supreme Court nominee Jackson.

I do so now [that is, a month or more ago] because I think it is now, when I--like most of us--am mostly ignorant about Judge Jackson--that I am most likely to say something accurate, measured, honest, and consistent about her confirmation process. It is understandable that people who are politically engaged or hyperattentive (or, possibly, addicted) to commentary on current events, or whose living and sense of self depends on believing in a set of myths about the value of transparency, the power of reason, the pertinence of facts, and so on--in short, law professors and the commentariat--will think that more information is always better and that their judgment necessarily improves as they learn more. But it seems to me that at least in this area, ignorance and a certain kind of naive cynicism are underappreciated, as are the downsides of "engagement." It is certainly important for one's understanding to know the quasi-official grounds on which senators are permitted to vote, the terrain on which they operate, and the moves they will make accordingly. Beyond that, however, for reasons suggested below, actual facts may just get in the way; more than that, they may serve as incubators of bad faith. The more we (think we) know about Judge Jackson, I venture to suggest, the more seemingly particularized (although, really, mostly ritualistic, reflexive, and strategic) but less wise, sound, and instructive our discussion of her candidacy will be. Of course, as facts come in and debates arise, I, like others, may feel moved passionately to intervene and offer some further argument. If that happens, you shouldn't trust me--or others; or, perhaps, yourself.

Because I find it all somewhat interesting and also want to purge myself of opinions now so I can use my time more productively than actually paying attention to the proceedings and generating opinions about them, I develop my points at great length below. But in brief, I would suggest the following general prediction, which is more important than the facts or "facts" that will be slotted in consistently with them. Sometime between now and the end of the process, Judge Jackson will either face a "scandal" or be revealed as an "extremist," or both. Sometime between now and then, she will also stand revealed not as an acceptable nominee who can do the job, but as a secular saint of virtually unsurpassed brilliance, empathy, or both. The stakes may start out as low, but by the end they will be world-historical. None of this need be true. Nevertheless, some or all it will be fervently believed, even by people who didn't believe these things at first. And one more, perhaps less frequently spotlighted point: Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole.  

The longer version follows.

 1: For the most part, the most pertinent reasons to vote for or against a Supreme Court nominee--and the actual reasons why most votes will be cast--are forbidden reasons on which to publicly ground a vote for or against a Supreme Court nominee. Unrealistically, one could put this down to a deeply considered view about what advice and consent require. More realistically, one could put this down to a genuine but shallowly considered and vague sense about what advice and consent require. There is also very little payoff, except in honorable conduct of one's office and fulfillment of one's oath, for devoting time and effort to coming up with a detailed and consistent policy on the topic, not least because one might then feel obliged to follow it. Really, a reasonable senator with an eye to his or her own interests just needs a sufficiently plausible and sufficiently publicly acceptable reason for voting. To the extent it reflects the senator's actual view, I would prefer to have a senator vote openly for or against a judicial nominee because that person is being appointed by the wrong president, or because the nominee may be wonderful but fails a single-issue litmus test, or because it's Tuesday or the coin came down tails, or just because. Some of these positions might fail whatever the constitutional definition of advise and consent "is." But I'm not sure that voting for a different reason and then bullshitting about it passes that test either, and at least a candid partisan or arbitrary vote would clear away the BS and provide for political accountability. In any event, the current state of affairs, broadly speaking, is that "she's a Democrat" or "he's a conservative," simpliciter, are not generally treated as adequate fodder for the senator's floor speech or press release or tweet.

2: One might add to that a second problem: given our credentialist and bureaucratized, professionalized approach to Supreme Court nominations, most of the candidates will already have been confirmed to a prior federal judicial office. This limits the politically acceptable range of options for justifying a vote against a nominee, especially but perhaps not exclusively for senators who voted to confirm the nominee to the earlier office. Even for those who voted against the nominee the first time around, the senator may want, not just to say "I'm voting against--again," but to find a way to move the needle of both public opinion and the vote in the chamber. Although I think the argument is silly, a senator is permitted to say something like, "That was just the DC Circuit. This is the highest court in the land." Sometimes they do. But it might not provide enough of a cushion and certainly doesn't provide much political momentum. Nor can they say, no doubt accurately in many cases, "I confirmed him/her to a lifetime appointment of immense gravity as a package deal, or to secure agreement on something else, or because I'm fine with unreflexively taking the party line on lower court appointments, or because I think he/she is a fine lawyer and was comfortable with his/her sitting on a lower federal court, especially given that moving from the appeals court to the Supreme Court is chancy even for those identified as potential nominees. But it was understood that all bets were off for Supreme Court nominations." This seems like a perfectly sensible justification. But it's too inside-baseball and is unlikely to change anyone else's mind. Of course one response to this is to tighten the screws for every judicial appointment, or for confirmation of a possible future Supreme Court nominee to any prior job. And we do see this, of course, and not necessarily to anyone's benefit. But, again, actually getting a nomination to the Supreme Court is chancy even for serious prospects, and it's reasonable that the willingness to cut deals or otherwise accept the confirmation of that person to a lower court will operate according to a different cost/benefit calculus than will confirmation to a Supreme Court seat. 

3: Given the narrowing of justifications that are acceptable under current political etiquette, and the frequent fact of prior confirmation to a different judicial office, the best bets, or at least the standard public positions, for rejecting a Supreme Court nominee amount to two: "Scandal" or "extremism."

A) Scandal: The nominee is fine, checks the credential boxes, is widely admired. I even voted for her last time around. But now that we have learned that she started that forest fire, or murdered those folks while she was in college, or whatever the scandal happens to be, forget it. Alternatively, now that we think it might be the case that she did something terrible, why take any chances? Fill in the usual rote invocation of "grave doubts" or "concerns" or whatever macro the staffer uses in writing the statement. The benefit of scandal is that it renders any prior confirmations irrelevant. It captivates the public, or some portion thereof. It only has to be plausible ("grave doubts"), not proved. And while it might not change the final vote, it allows the investigation process to be drawn out--twice: once in the protracted search for scandal, and again if something turns up that is close enough to squeeze out a case for further investigation and/or hearings--damages the appointing party and president, and, far from incidentally, is a fundraising goldmine both for the senator and for all the interest groups the senator might want to please or enrich. "Scandal" is also a conveniently variably defined term, although I suspect the relevant standard has tightened over the past 30 or so years. (And politically ambitious people now know to make sure the nanny's Social Security taxes are paid up.) In any event, a whiff of scandal, or a lesser scandal, may serve as sufficient grounds to justify delay and more digging, in the hope something worse will turn up. 

B) Extremism: Not everyone has lived a life filled with what count politically as sins, alas. (Although I admire most of the people I have met who have lived lives of conventional rectitude, I'm not sure we're better off with such a standard. Within limits, there's something to be said for eccentrics, freaks, and mild rogues--even as judges or justices. And, of course, what counts politically as a sin is very different from the actual scope of sin. It is a "scandal" to have cheated in law school. It is not a "scandal" to succeed honestly at law school, have a brilliant career, get a job teaching at a fancy school, and use one's wealth and position and connections to ensure that one's children also go to fancy schools and get fancy jobs, including at the same institutions. Heaven forfend.) In the absence of even a plausible and variable case for scandal, the next best bet is extremism: Of course I would vote for a judge nominated by a president of a different party. I only think about the merits. I have voted to confirm plenty of judges nominated by this president! But this nominee is too extreme. This was roughly the Obama line during his tenure in the Senate, but of course many use it. It has the advantage of sounding reasonable and thoughtful and occasionally being accurate. But its greatest advantages are political acceptability, variability, and opportunity. There is no definition of extreme. Nor is there are a threshold number of positions or decisions that must be taken or decided before one officially counts as extreme. In a pinch, one outlier view will do. Better yet, one outlier opinion will do--and given the trend of appointing Supreme Court justices with prior federal judicial experience, one can usually find that one opinion, preferably one whose facts make for good copy. ("Merely because some little old statute duly passed by Congress had a clearly stated deadline and no provision for exceptions, she was willing to deny poor Timmy access to lifesaving medical treatment! Is that the kind of person we want rendering judgments on the highest court in the...?") Even without a decision, if one is lucky enough to have a nominee with a record of academic legal writing, one can still get to extremism. ("Baby selling?")

I would much prefer a senator to oppose confirmation on the basis that a nominee is a "liberal" or "conservative" than because the nominee is an "extremist." Partly it's because the standard is clearer, and partly because it's more honest and conduces to more honesty; if "liberal" or "conservative" were sufficient, the senator would have less need to turn or distort a hard or odd or unusual case, or an easy case with terrible facts, into an "outrage." But there are other reasons. First, as with personal eccentricity versus clear, conventional, rather rigid rectitude, a hunger to avoid "extremism" or for providing any basis for an accusation of extremism encourages the advancement of the dull party-liner or clever trimmer over the occasionally terribly wrong but also brilliant and independent mind. In nomination-world, we all cast ourselves as the staid police colleague in the movies who dots all the i's and disdains that one "maverick" detective who, the rest of the time, we think of as the hero. Second, and admittedly not without basis, it fails to sufficiently appreciate the possibility that one's office affects one's work. The academic who never takes or so much as muses on an "extreme" position for fear of it affecting later advancement is failing at his or her current office; and the one who is willing to advance such positions may understand the judicial office as differing considerably in its duties and constraints from that of scholar. The lower court judge who duly and loyally, if dully, follows precedent in a case with awful facts may view the office of a lower court judge differently than that of a Supreme Court justice.

Regardless, scandal and extremism are the two most essential ingredients of a judicial nomination process, and whether they are real and serious (which surely happens) or more dubious, one or the other will turn up and be invoked. Other critical arguments will be invoked. Some of them will be arguments about something else entirely, arguments for which the nomination merely serves as a convenient platform. (I gather that a television celebrity demanded that Jackson's LSAT scores be divulged. I assume the goal of that was to make hay on the subject of affirmative action, although that strikes me as irrelevant to any concerns about the nominee herself). Senators will talk about abortion, Court-packing, religion, empathy, balls and strikes, and so on. But few if any of those are likely to alter a party-line vote. Neither will extremism, and scandal today will only rarely alter anything. But they are the only acceptable vocabulary that is left for trying to move the needle as long as we persist in excluding most of the actual reasons to vote for or against a nominee from open invocation by both those doing the voting and the attendant lords who engage in commentary and fundraising. 

[So far as I can tell, "extremism" has been the approach here, and it has focused on Judge Jackson's pre-judicial career, with the silly argument that she represented terrible people as a public defender. Since I'm not the constituency for such an argument or for those making it, I can't say how effective it has been. It does not seem to me to have much traction, and thus has mostly served--in the way that "too extreme" arguments generally do--as a politically sufficient justification for a "no" vote and for fundraising and speechmaking around that vote without having to say "I wanted a liberal/conservative judge" or "I oppose anything a President of another party does." Surely that was exactly the purpose of the frozen trucker case in the Gorsuch nomination.]

[I wrote above, "Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole." This line of extremism argument serves as a fine illustration. Those who think the "oh my God, a public defender actually represented accused criminals" line demonstrates the intellectual flaws, dishonesty, or general awfulness of those making it might remember that one of the criticisms of another prospect for this seat that was heavily if more quietly pushed within the Democratic party/interest-group complex was "oh my God, an employment lawyer who represented employers." Unlike the public defender argument, which will likely not alter the vote, it is entirely possible that the "she represented the wrong side" argument convinced President Biden to pass over Judge Childs, if only to be consistent in this administration's policy of truckling to interest groups who can help in losing gubernatorial and midterm election races.]   

4: On the other side, one can expect that supporters of confirmation will not be content to call the nominee good, fine, acceptable, okay, plausible, or anything like that. Most nomination and confirmation rituals involve someone calling the nominee the most qualified possible candidate, and every such process involves public commentary rightly scoffing at the very idea of a "most qualified possible candidate." I think the scoffers are right. But the pats on the back for making this point should soften in light of another phenomenon often observed among the very same scoffers. That phenomenon is what we might call the greatness inflation of the nominee. Not unlike bankruptcy, it will happen gradually and then suddenly. The gradual nature may have something to do with the time it takes to gather and disseminate inspiring facts and for a standard narrative to solidify; it may also have to do with the fact that the process usually begins with several possible nominees, at least a couple of whom are equally popular or acceptable, so that everyone, the eventual nominee included, starts out at the same basic level: equally and merely terrific. Once the nomination is official, however, greatness inflation process sets in.

Given the default "realist" position that multiple people would be good picks for the job, and the realist fact that contemporary nominees all have more or less the same elite credentials, one would think it would be awkward or unnecessary to inflate the greatness of the nominee. Any number of factors weigh against this, however, even for those who have some acquaintance with the judge and his or her record and can assess it fairly. The most obvious is the push for confirmation, which feels urgent to many even when they also believe everything will just come down to a party-line vote and even when the numbers in the Senate are comfortably in favor of confirmation. (It would be nice, if unimaginable, to see a confirmation process where the vote is sufficiently solid that the senators could simply call the nominee "a reasonable pick" or "a decent choice.") Another, related to that but with some twists of its own, is the ego and ambition of the person offering the praise. Those associated with the judge may want to burnish and publicize that connection. Members of the academic establishment might want to establish their bona fides and encourage a relationship with the Justice, in the same way that beat reporters will run a "source-greasing" story that praises some potential source for purposes of future access. Supreme Court advocates have excellent reasons to do the same thing. Many people just like having bylines on op-eds in major newspapers. 

Whatever the reason, the nominee will soon go from "a plausible candidate" to something closer to genius and sainthood. [I cannot say how much this has happened with Judge Jackson. I note that the Times has such a story today, and that it ran a "She's a super-mom too!" op-ed a while back.] 

5: What is perhaps most interesting about all this is that although it can all be described as a matter of strategy and tactics, mixed in with a certain amount of sincerity but resulting in more or less the same arguments made each time regardless of the nominee, at least in a heated confirmation process all this will become a matter of deep belief and conviction on the part of the people making or responding to these arguments, or at least on the part of the audience for these arguments. People who quite reasonably did not give a damn about the nominee a few scant weeks ago--because they had never heard of him or her--will care deeply about that person and believe whatever the standard line is with great fervor. One would think that after a few rounds of this, one would see the pattern and refuse to be used, to have one's strong feelings manipulatively engaged, in this fashion. But confirmation hearings, like other political events, are like tearjerker movies. You can see the strings, you know the filmmaker is pulling them with an eye on the box office gate and the opening weekend, you know the music and the lighting and the dramatic pauses and the actress lying the hospital bed are all tropes designed to manipulate your emotions. You may resent it. But the tears flow just the same. 

[I would have liked to develop this point more, but will let it go in the interest of timing, having already sat on this post for some time. If a last-minute "scandal" were to emerge, I suspect we would see it happen here. But so far, there has not, I think, been the same level of emotional engagement in this nomination, perhaps because of events elsewhere, which help place this event in a proper perspective, or perhaps because the nomination will have little effect on the vote count on the Court, or because the votes seem sufficiently clear, or because the downsides of going nuclear over this nominee are too great. I can't say. But the phenomenon is one I find fascinating, and certainly one we will see again, particularly in the case of a nominee who is replacing a justice with a different set of views or votes. Our capacity to convince ourselves that we care deeply about something, and to be made to feel deeply about arguments that we know are largely rote and strategic--including the arguments we are making ourselves--is perhaps the greatest weak spot of even ostensibly sophisticated and knowledgeable individuals, who, when it comes to politics and culture, are just as susceptible as the audience at some Hollywood weepie. Again, I think we would be much better off if senators did not spend their time looking for scandals or extremism and simply announced their votes openly on purely political, or political-substantive grounds. But as long as that's not a permitted move, I am not convinced that more knowledge and more information as helpful to the process as we are wont to think.]      

Posted by Paul Horwitz on March 21, 2022 at 11:03 AM in Paul Horwitz | Permalink


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