ideal-ology
Tomorrow Sen, Frist (R-Tenn.) will put forward two nominee to
seats in the federal judiciary kicking off what Washington Post has
named the "Filibuster Fight" (that's the name of their RSS feed on this) see Democrats, GOP End Talks on Filibusters, and Frist to Begin Floor Debate on Judges Next Week.
The filibuster sideshow gives the story a tight focused old-fashioned
Hollywood melodrama angle, but it is a small even inconsequential part
of the real story. The US Senate sets its own rules. It can change em,
change em back. It is a constitutional issue only in the narrow sense
that the constitution established the senate and left its affairs to it.
What makes this significant, as I see it, is the disappearing
consensus on what constitutes the good. The best thing, the greatest
good, the moderate - utilitarian - position, societal maximal solution,
Pareto optimality. Does such a notion still exist? Are all these terms
synomonous. The property rights crowd seem to champion a version of
Pareto where the government can undertake no solution that does not
leave everyone better off certainly not leave one property holder worse
off. I thought Socrates once argued that the just will not always leave
everyone better off, but the welfare of the polity was the greater
concern. There is implicit begging of questions in the ways this meta
question is phrased.
I beg mine: certain things need to pre-exist within a group of
people before that type of question makes sense or can deliver any
answer. Answer question about community first or have their answers in
place. The judiciary is the continuation of politics by other means. It
is class struggle, is flux, it is war. The terms of the current battle
is the competition of conservatives to get a nominee of their
particular persuasion to the judiciary and from there to the Bench. In
this mix are Social Conservatives: Anti-abortion, anti-seperation of
church and state. Advocates of a nominally theocratic state. Also
Lockian upholders of Property Rights, a belief in the absolute nature
of individual property rights and in a federal government limited to
the strictly enumerated rights. Which, don't allow for mass holding of
public property by the state. To the extent the state comes into
possession of property it has an explict mandate to dispossess it to
private holding. This group is also marked by a belief in the non
benifice of the commons with notions of intellectual property to match.
In all this it is possible to read the reality of judical
activism in our political culture and our general fondness for it. As
well the unreality of states rights. One common ground between these
two factions a previous propensity for states rights over federal
supremacy and regulation, is weakening in the face of adesire to
uniformly dictate their views comprehensively to the entire nation. The
judiciary is one of the few venues in the american political
process for government by fiat
When I went browsing through the UMCP libraies catalog and
article databases for academic perspective and opinions on this I
turned up a name I knew. No one I know, personally. Someone my sister and brother-in-law went to
law school with: Michael J. Gerhardt. He is a professor of
Constitutional Law at William and Mary and has written books and many
articles on the Federal appointments process. For this round at least
let's see what Prof. Gerhardt has to say. In a book review . (Attitudes
about attiudes. May 2003. Michigan Law review. Vol 101:1733.
Michael J. Gerhardt ) of Segal and Spath's 2nd edition of their book on
the Supreme Court he brings up the disparity between the way
Sociologists/Political Scientists look at the courts and the way Law
Theorist do. It is the point where they talk past one another. At issue
is the Attitudinal Model a modern political science empirical
model of judical decisions as "based on personal attitudes on social
policy and not on the basis of any genuine fidelity to the Law."
In a earlier article he had brought up Norm Theory a semi
institutionalist take on the appointments process it posits existence
of a body of informal rules and fairness concepts which balance the
appointments process alongside, and in the absence of more formal ones.
It seeks to identify and describe their use with an eye to making these
processes understandable and more predictable. Prof. Gerhardt notes the
increasing prevelence of payback,
a fairplay norm, in federal appointments. He also talks of norm
ambiguity - birth of a new norms when previous norms conflict or do not
produce a clear direction. This can also be seen as Norm
entrepreneurship - the deliberate cashiering and replacing of one norm
by another [from: NORM THEORY AND THE FUTURE OF THE FEDERAL
APPOINTMENTS PROCESS. Michael J. Gerhardt Duke Law Journal April, 2001
50 Duke L.J. 1687]. Another norm worth mentioning here (brought up in a
Newshour discussion Filibuster Facts
last night) is the pan-legislative notion of requiring a supermajority
in certain parlimentary situations potentially this may be a collateral
casualty (as a norm) of killing the filibuster.
This brings us to a recent article JUROCRACY AND DISTRUST:
RECONSIDERING THE FEDERAL JUDICIAL APPOINTMENTS PROCESS: MERIT VS.
IDEOLOGY. Micael J. Gerhardt. Cardozo Law Review January, 2005 26
Cardozo L. Rev. 353. If [who is] the best judge in the land is
measurable - and can be viewed objectively in some sense, as merit; why
don't discussions of merit carry more weight or become part of the
formal process. "It is unclear
why we fail to discuss merit more than we do. It is possible that when
it comes to merit, we might all agree on more than what our leaders or
academics typically acknowledge." We can still imagine
this ideal nominee and the non controversial qualities we would like
him or her to have, the qualities among others, or as another way of
seeing them, of the most admired past justices. The importance of
article iii appointments (constitution appointments of life tenure to
the judiciary requiring Senate advice and consent) is to claim by
gaining them the mainstream - in constitutional legitimacy, in public
opinion. This is not to say these battles are merely rhetorical, not
transformational. The judiciary is the high ground, the strongest
institutional redoubt to lay-in your concept of right. The lower
judiciary specifically is the road to the US Supreme Court.
Justices re-array the right and left around them, and the nation with
them. This is the final goal. This simply serves to unscore that
ideology exists and that it matters. Defintively pointing to it in the
wild, may be problematic, but it needs to be treated like it exists,
(an acknowledging of the attitudinal view of the judiciary so that the
debate can be re-formed to discussion of merit. Rigid or intemperate
holding of ideology would be just one factor of that debate. Where it
would sit alongside other normative factors such as the political
strength of sponsoring senators or the president.
The goal of rapid appointments - up or down votes - takes its
place within the realm of social struggle - no one ought to pretend
that there is a branch of Government somehow outside of politics. All
the same idea of good government calls for compromise and arbitrated
solutions, this should be understood as taking precedent over the
seasonal fortunes of one or another party, or the political ambitions
of any one man.
11:28:01 PM  ;;
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