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Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, March 11, 2003
Ongoing Debates Department: Political Ideology and Judicial Selection Over the past few weeks, Rick Hasen and I have engaged in an ongoing debate about the role of political ideology in judging. This is the fourth and final installment in my reply to Rick’s post from last Monday. Restoring the Rule of Law This all began with my argument that judges should be selected for their possession of the judicial virtues rather than their ideology. Rick Hasen argued that the courts are already ideological, and neoformalism, the normative theory which contends that judges should decide on the basis of law rather than politics, is unrealistic. Rick argues that the best we can hope for is minimalism, political judging that is constrained. Yesterday, I offered an informal game theoretic model of judicial selection. That model predicted that a strategy of tit for tat could produce a stable cooperative equilibrium, with both sides appointing formalist judges. Under certain conditions, however, a downward spiral of retaliation might develop, with opposing parties engaged in an escalating war of politicization. Two factors that might trigger the downward spiral are: (1) Asymmetrical Perceptions—each side might exaggerate its own cooperativeness while missing cooperative signals from the other side, and (2) Short Sightedness--for various reasons, one or both sides might overvalue the immediate benefits of politicization and undervalue the long run benefits of the rule of law. Once a downward spiral has set in, both sides might come to believe that a stable cooperative equilibrium is impossible. De-escalation How might a downward spiral be stopped? One end point for a downward spiral is the bottom—the point at which the judiciary has been thoroughly politicized and judging has become a blatant struggle for political control combined with the dispensation by the judiciary of political rewards and punishment. But if we are not yet at the bottom, could a downward spiral be halted or even transformed into an upward spiral of cooperation—ending in a stable cooperative equilibrium? Can we de-escalate? The Mechanisms of Cooperation To restore cooperation, the underlying causes of the downward spiral must be addressed. We must transform asymmetrical perceptions into accurate and shared belief. Short sightedness must be replaced with a view to the long range. If these transformations could be accomplished, the self-interest of both sides should lead to the adoption by both liberal and conservatives of a tit-for-tat strategy, which in the long run leads to the appointment of formalist judges as a stable cooperative equilibrium. End the Propaganda War Is it possible for both the left and the right to get an accurate view of the politicization of judging? Here are some suggestions:
One mechanism might be to have a trusted third-party evaluate judicial candidates on the basis of their possession of the judicial virtues, especially the virtue of justice—the disposition to decide on the basis of law rather than political ideology. But in order for this strategy to work, the intermediary must be trusted. This makes is extremely important that the intermediary itself act (and be perceived as acting) in an apolitical fashion. And in order to insure that intermediaries be perceived as apolitical, it is crucial than neither side should lobby the intermediary. Although the ABA may have been perceived at one time as a neutral intermediary, it is clear that this perception is no longer shared by both liberals and conservatives. The creation of a new third-party intermediary is one possible technology for minimizing the problem of asymmetrical perceptions. If a new intermediary is created, it is vitally important that both sides refrain from lobbying the intermediary, because such lobbying is likely to undermine trust—whether or not the lobbying has any real impact or not. Critical Self-Evaluation Yet another mechanism for minimizing asymmetrical perceptions is for each side to engage in critical self-evaluation. This means that both liberals and conservatives need to look critically at their own judicial selections, and attempt to realistically access the extent to which they have nominated judges or justices who adhere to the rule of law in an even-handed fashion. Such critical self-examination need not be aimed at the general public. What is required is that the players on both sides of the judicial selection game disabuse themselves of the notion that, “We select fair and even-handed judges, but they select biased judges.” Transparency in the Judicial Selection Process In addition, asymmetrical perceptions are likely to be reinforced by asymmetries in the availability of information. In practical terms, it is the President and the nominee who have the power to reduce these asymmetries. Of course, the more politicized the candidate, the more likely it becomes that openness in the confirmation process will lead to opposition. But candidates who are strongly committed to the rule of law should benefit from a transparent confirmation process. Transparency is likely to increase the opposition’s belief that the candidate truly is committed to the rule of law. Candidates should be forthcoming, both making themselves available to answer questions and answering appropriate questions with candor. The use of handlers should be minimized and their role constrained. Back Off Attack Mode Yet another way to end the propaganda war is to back off the use of unfair or distorted attacks on judicial nominees. This takes me back to the starting point of my debate with Rick Hasen. Adam Cohen’s New York Times Op Ed was an unfair attack on Justice Deborah Cook. I still don’t know whether I support or oppose Justice Cook, but I do know that distortions of her record will reinforce the downward spiral of politicization that we are currently experiencing. Minimalism as a Transition Strategy And this brings me back to Rick Hasen’s suggestion. Rick argued that my first-best solution, neoformalism, is unrealistic. Instead, he suggested an alternative strategy, which he called minimalism—a constrained form of political judging. Such constraint might well be an appropriate transition strategy. To the extent that both liberal and conservative judges are constrained, political actors become more likely to believe that cooperation in the judicial selection process can result in an equilibrium that benefits both sides. Moreover, I agree with Rick that a neoformalist big bang is not realistic. The downward spiral of politicization has progressed too far. Too many political judges have already been appointed. We cannot expect judges who lack the virtue of justice to forgo political calculation—that would go against the grain of their character. Restoring the rule of law is a long run project. Minimalism may very well be a strategy that could play a rule in halting, and even reversing the downward spiral. But if Minimalism Is Realistic in the Short Run, the Neoformalism Is Realistic in the Long Run Suppose Rick is right. Suppose that minimalism is a realistic strategy for breaking the downward spiral, and reestablishing a stable cooperative equilibrium. Once we begin to move up the spiral, then the situation begins to change. If judges are not initially selected for their possession of the virtue of justice, they are at least selected for moderation and willingness to compromise. But why would there be a ceiling on the upward spiral? As trust is restored and both sides begin to focus on their long run self-interest, each side becomes more confident that appointing and confirm judges who are strongly committed to the rule of law is, in the long run, a win-win strategy. As such judges are appointed, the behavior of the courts begins to change, which in turn would lead to even greater mutual trust. The question is not whether the Supreme Court could transform itself into a neoformalist tribunal next term. The question is whether actions we take now could set the stage for a transformation of the judiciary in the long run. Convergence So in the end, I think that my position and Rick’s position converge on several points. We agree that a continued downward spiral of politicization (Rick’s “mutually assured destruction”) should be avoided. We agree that in the short run, steps should be taken to reduce politicization, and that Rick’s preferred option, minimalism, is one such step. We agree that a neoformalist big bang is not a realistic option. But I am not sure whether we agree about the long run. Perhaps Rick thinks that minimalism is the best we can do. Perhaps Rick thinks that minimalism or something like it is not a second-best solution at all, that constrained politicization is actually better than neoformalism. Or perhaps, Rick simply chooses to focus his attention and his formidable intellectual skills on the problems at hand—leaving the long-run first-best questions for another day. Rick? Saturday, March 22, 2003
Downward Spirals Department Yesterday, Rick Hasen posted a thoughtful comment on the question whether the highly-partisan judicial selection process is in a downward spiral of politicization—responding to my earlier post—here.. Rick argues:
Monsters and Apparitions Rick also writes:
The Bottom Thinking about the bottom of the downward spiral has real utility. As I have argued previously, the downward spiral is the product of two factors: (1) asymmetrical perceptions—each side believes the other side is escalating, leading to further retaliatory escalation (going nuclear); (2) short-run thinking—each side is myopically focused on the next election and the next term of the Supreme Court and hence, both sides have lost sight of the long run—the enormous benefits produced by the rule of law. The point of my parade of horribles is not that we are at the bottom of the spiral today. Thank goodness, we are not even close. The point of thinking about the bottom is to remind ourselves that we do not want to go there. Both left and right share a long-run interest in maintaining the rule of law. Rick’s post suggests one way to de-escalate—tone down the rhetoric—on both sides. I’ve suggested another technology of de-escalation—look to the long run. There initial steps can lead to others. Republicans should withdraw the threat of “going nuclear.” Democrats should not blue slip and filibuster systematically. Both left and right can and should realize that de-escalation is in their own long-run self interest. My Agenda Rick understands that I have a "radical" agenda. My hope is that the current downward spiral can serve as a wake-up call, a crucial perception-altering event. Further descent on the downward spiral is not inevitable. A depoliticized, neoformalist judiciary supported by a cooperative judicial-selection process has, in the past, been a stable cooperative equilibrium. Neoformalism is the norm in most advanced judicial systems outside of the United States, but there is no reason to believe that party politics in the United States are so different from those elsewhere that we are doomed to judicial politicization. The rule of law is not pie in the sky; it is a realistic option, inside the feasible choice set. A downward spiral can become an upward spiral. Both parties can come to realize that it is in their long-run self-interest to appoint virtuous judges. The cardinal judicial virtue is the virtue of justice—the disposition to decide in accord with the law and not on the basis of politics. Hopes and Fears My hope is that we are close to a turning point—that when the talk turns to going nuclear, both sides may realize it is time to call off the war. My fear is that the long-run costs of politicization are not yet sufficiently vivid to transform the short-run orientation into a long-run orientation—that both sides must deploy their nuclear options before either side will “get it.” Moves Toward the Final Death Spiral What if my fears are warranted? How might escalation continue? Rick has explored several possibilities, including the use of recess appointments to the Supreme Court and suspension of the cloture rules for judicial confirmations. Democrats would surely attempt to retaliate, and if they lack the means to retaliate now, they will bide their time and act when they regain control of the Presidency or the Senate. On the bench, intensely partisan political judges may come to believe that the blatanly political decision making is simply an ordinary and acceptable tactic in the struggle for political power. I see no reason to believe that the downward spiral will terminate any point short of what Rick has called "mutually assured destruction." Monday, March 10, 2003
Ongoing Debates Department: Political Ideology and Judicial Selection Rick Hasen and I are engaged in an ongoing debate about the role of political ideology in judging. Rick’s latest contribution was made on last Monday. My reply began on Saturday, with a second post on Sunday, and continues today. The Issue How should politics figure in judicial selection? I have argued that the first-best answer to this question is that we should select judges on the basis of their possession of the judicial virtues—especially the virtue of justice, the disposition to decide in accord with the law and not political ideology. Rick has not contested neoformalism as the first best solution—although he has reserved the right to do so. Instead, Rick argues that because the current Supreme Court is (and has been) highly politicized, we should move to a second-best solution, which he calls minimalism. Thus the issue is one of nonideal theory: how should we select judges once politicization has set in? A Game Theoretic Approach A Noniterative Two Person Game One way to conceptualize this issue is from the perspective of game theory. We might imagine this game as a simple two-player prisoners dilemma. Let’s call the two players liberal and conservative. Each player has two options, politicize (appoint political judges) or formalize (appoint formalist judges). Let’s abbreviate L=liberal, C=conservative, P=politicize, F=formalize. So LP=the move where the liberal politicizes, CF=conservative formalizes, and so forth. If this were the standard (symmetrical, noniterative) prisoner’s dilemma, the payoff structure would be as follows: {[LF,CF = L2,C2], [LP,CF = L3,C0], [LF,CP = L0,C3], [LP,CP = L1,C1]} This is the class prisoner’s dilemma. From the liberal’s point of view, if the conservative formalizes, then the best move is to politicize. (Liberal judges will always advance the liberal agenda, but conservative judges will vote liberal for formalist reasons half the time.) If the conservative politicizes, then the liberal’s best move is to politicize—to avoid the situation where the conservative judges always vote liberal and the liberal judges vote conservative half the time for formalist reasons. The payoff structure is symmetrical, so both players will politicize. (By the way, Joseph Isenbergh recently made a similar point in his paper Activist Judges Vote Twice.) Complexities Of course, the two person, noniterative model does not capture all of the complexities. A more realistic model would need to account for at least the following:
--Nomination and confirmation interact to produce judges. In an extended model, either the President or Congress could be liberal or conservative. Presidents could politicize or formalize at the nomination stage, and Congress can either confirm or not confirm nominees based either their status as formalist or political, and if political, then their status as conservative or liberal. --The decisional dispositions of judges actually vary on a spectrum, from very conservative to very liberal, and from very formalist to very political. Tit for Tat Here is one possible lesson of a game-theoretic approach to judicial selection. Suppose that you are playing the judicial-selection game. The other side has moved first, appointing political judges. It is now your turn. Perhaps, you believe the first-best outcome is the rule of law. But if your move is to formalize, you get the worst of both worlds. There are too many political judges for the rule of law to prevail, but the formalist judges you appoint will sometimes vote with your opponent’s judges for formalist reasons. You don’t get the rule of law, and you don’t get the outcome you want. Now, it is possible that if your move this turn is to formalize, then your opponent will cooperate and also formalize when your opponent controls the selection process. But given that your opponent defected during the last round, you have no basis for trusting your opponent. Experiments using iterative versions of the prisoner’s dilemma game, suggest that the best strategy is tit for tat. If your opponent defects in round one, then you defect in round two. If your opponent then cooperates in round three, you cooperate in round four. If you play tit for tat, your player will eventually see the pattern, and begin to cooperate. I Have Good News and Bad News What are the implications of our informal game-theoric analysis of judicial selection? There is good news and there is bad news. The Good News First Here is the good news. If the rule of law really is a better outcome than a downward spiral of politicization, then, in theory and over the long run, it should be possible for a cooperative equilibrium to emerge. That is, liberals and conservatives should both appoint formalist judges. Tit for tat should lead to cooperation. Now the Bad News If Rick Hasen is right, however, we have already spiraled down to the point where a cooperative strategy is, in Rick’s words, “totally unrealistic.” Why? What explains the failure to cooperate? In the actual world, of course, there are historical explanations. We can, however, give a game-theoretical explanation, focusing one two factors, asymmetric perceptions and short sightedness. Asymmetric Perceptions For a variety of reasons, a downward spiral could develop. Cooperation requires trust, but the strife associated with partisan politics may undermine the basis for trust. In particular, each side is likely to perceive the other side’s judges as more political than would a neutral third party. Similarly, each side is more likely to perceive its judges as more neutral than would a neutral observer. Thus, both liberal and conservatives might simultaneously assert, “Our judges are only a little political, but yours are very political.” Given asymmetrical perceptions, it is possible that each side would characterize the same round of play as, “We cooperated, but they defected.” Leading in the next round to deliberate defection by both sides. Short Sightedness The problem of asymmetrical perceptions can be exacerbated by another phenomenon, short sightedness. For a variety of reasons, one side or the other may apply a very high discount rate to payoffs beyond the current round of play. For example, one side may perceive that its electoral chances depend on the appointment of judges who are committed to outcomes on particular issues. Incumbents may not care about outcomes past the current round if they will no longer be playing. More simply, intense partisan strife may produce an irrational preoccupation with winning in the current round of play. Short-sightedness may result in one side or the other defecting from the cooperative strategy. Downward Spiral The combination of short sightedness and asymmetrical perceptions could result in a downward spiral. If the spiral persists for several rounds of play, then both sides could rationally come to believe that a stable cooperative equilibrium is impossible. Under these circumstances, then the tit-for-tat strategy might give way to a doubling-up strategy. Each side might attempt to recoup its loses by doubling the bet—in other words, by appointing judges who are even more ideological and whose views are more extreme. This would accelerate the progression of the downward spiral. How to Escape the Downward Spiral Tomorrow, I will suggest options for converting a downward spiral into a stable cooperative equilibrium. In other words, I will suggest how we might begin to transform a judicial selection process that is dominated by political ideology into a process that focuses on selection on the basis of judicial virtue. Tune in Tomorrow. Same Bat Time. Same Bat Channel. Tuesday, April 29, 2003
The Downward Spiral of Politicization of the Judicial Confirmation Process: The Recess Appointments Option
The Next Step In the short run, the politicization of the confirmation process is political theater. Both parties posture and play to the media. But the political theater phase of the confirmation wars is about to end. There are at least two reasons why the sitzkrieg cannot continue. The first is that the judiciary is becoming depopulated; judicial emergencies have already been declared in several circuits. The second reason is that the battle is about to move to the Supreme Court. If William Rehnquist and Sandra O'Connor resign this summer, as is widely expected, the mother of all confirmation battles will be joined. There is no reservoir of good will between the parties to draw upon--that has been depleted over the course of the last few months. This will be an intense, bitter, partisan fight--with the memory of Bork and Thomas steeling Republican wills for an all-out, no-holds-barred contest with Democrats who see the crucial vote to overrule Roe v. Wade as potentially on the line. So what's next? Consider three possibilties:
Depopulation of the Judiciary The second alterantive is depopulation of the judiciary. The stalemate could persist. Democrats could filibuster any Republican nominee who isn't "moderate," and the President can stop sending "moderates" to the Senate. The Supreme Court can function with seven Justices. The lower federal courts could limp along with fewer and fewer judges. Of course, the depopulation option cannot last for very long. On the one hand, the ability of the courts to do the nation's judicial business will eventually begin to suffer substantial impairment. On the other hand, the depopulation of the Supreme Court will have obvious political consequences. For example, if Rehnquist and O'Connor were to resign and not be replaced--the ideological tilt of the Court would move dramatically to left, with Stevens, Souter, Ginsburg, and Breyer forming a working four Justice majority. The pressure to break the stalemate would begin to build. And this leads me to the third option. Recess Appointments The Recess Appointments Clause, Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." My colleague, Rick Hasen, started blogging about the wholesale use of recess appointments some week past. And that option has been discussed by Hugh Hewitt in an essay in the Weekly Standard. The use of recess appointments to the judiciary has ebbed and flowed since 1789, but it has been rare in recent years. The reason is that the Senate is jealous of its constitutional perogative--the advice and consent power. By statute, most recess appointees cannot be paid, and the Senate, from time to time, reminds the President that recess appointees are unlikely to be confirmed. Given the uncertainty of confirmation, most of those qualified to serve as federal judges or Justices of the Supreme Court are likely to be unwilling to accept a recess appointment. Hence, the use of the recess appointments clause has been sparing, and its wholesale use has been deemed impracticable.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees. But Where Would This Lead? Wholesale recess appointments would constitute a radical change in the way that judges are selected. Where would this lead? I will have more to say about this topic in another post. For now, here are some possibilities worth thinking about:
Retaliation But Democrats may not be in the mood for compromise. In fact, they might see this move by the President as exactly what the Democratic party needs to activate its base. Of course, activating the base may not be the best strategy to elect a Democratic President in 2004--an active Democratic base may produce an unelectable Democratic candidate. But an active base has another side effect--a massive influx of campaign contributions for incumbent Democratic Senators and Representatives. And the Democrats can open a second front. There is a litigation strategy. Howard Bashman of How Appealing has argued that recess appointments to the judiciary violate the good behavior and undiminished compensation clauses of Article III (see also here). The host of activist Democratic lawyers that fought the legal battle for Gore in Florida could be reactivated, and their Republican opponents could join the fray. The issue would eventually land where? Why in the Supreme Court, of course, with two of the sitting Justices (the replacements for O'Connor and Rehnquist?) possibly themselves recess appointees. They might recuse themselves, but then again, they might not. With the future of the Republic on the line, this case would make Bush v. Gore look like a carnival sideshow. Friday, March 21, 2003
Downward Spirals Department Is the current battle over President Bush's nominations to various federal courts part of a downward spiral of escalating politicization of the judicial selection process? I've argued that it is, but my colleague Rick Hasen believes that Democratic tactics are simply tit for tat--responses to equivalent moves by Repubicans in the last round--when Clinton was President. In particular, Rick argues that Democratic use of blue slips is paralleled by Republican use during the Clinton years. See his post here. Let me concede that blueslipping, by itself, does not establish escalation, but add a comment. Both Democrats and Republicans percieve that their own moves are tit for tat, but that the moves of the other side are escalation. In other words, we face a problem of asymmetrical perceptions. This is one of the important preconditions for a downward spiral. If each side percieves that the other sides moves are escalatory, then each side sees escalation on their own part as the rational move. Hence, the Republican discussion of "going nuclear"--see Rick's original discusson and then scroll up in his blog for further posts. If I am right about the downward spiral, the consequences can be profound. The end-point of politicization is very grim indeed--with judges openly battling for poltical agendas, ordinary tort and contract cases turning into the opportunity for the distribution of pork, and the political branches retaliating against the judiciary when there are differences in party control. We don't want to go there. Thursday, November 13, 2003
Why Did Tom Harkin Watch The Bachelor Last Night?
Bill Frist was not watching The Bachelor last night--he was at the sit in. Yesterday, Frist had an op/ed in the Washington Times. Here is a taste:
Of course, the debate is more than about mere Senate procedure. The minority is amending the people's Constitution without the people's assent. The reason for this is now well-known. Senate liberals have sought, with increasing intensity, to politicize not just the confirmation process but the courts themselves. In pursuing this course, liberal Democrats are threatening the legitimacy of America's courts. That legitimacy comes from much more than black robes and a high bench. It comes from the people's belief that judges will apply the law or the Constitution without regard to personal politics. Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule without bias, liberal Democrats are out to guarantee that our judges are, in fact, biased against some and in favor of others. In the America that would result, citizens will have to worry about the personal politics of the judge to whom they come for justice.
Neither Schumer nor the Republicans can have it both ways. Of course, you can try to maintain that when decisions go your way, judges are just following the law, but when they go your opponent's way, the decisions must be the result of politics. But that is simply deception and hypocrisy. In my opinion, Schumer's less public remarks reveal his true position. Charles Schumer sees the judicial confirmation process as a struggle for political power. Many on the Republican side of the aisle agree with his diagnosis. But my guess is that many Democrats and Republicans do not agree with the proposition that judges should vote their political preferences. Many on both sides of the aisle still believe that judges should follow the rules laid down and that politicized judging does real damage to the rule of law. Unfortunately, those who advocate the rule of law are finding it more and more difficult to defend this position against the charge that it is pie in the sky. More and more, sophisticated voices maintain that the downward spiral of politicization is now irreversible. Indeed, it appears that both sides now understand the judicial selection process as a prisoner's dilemma. If the Democrats support the rule of law and select formalist judges, then the Republicans can go political, gaining an edge in the third branch. And vice versa, if the Republicans go formalist, then the Democrats can go political. What each party fears most is playing the fool, allowing the other side unilaterally to stack the bench with politicized judges. The outcome of the prisoner's dilemma has been an escalating battle over the judicial selection process, and we have now reached the stage where Democrats are filibustering multiple nominees and the Republicans are talking about going nuclear (using parliamentary maneuvers to eliminate the filibuster option on judicial nominees) or mass recess appointments. But where does a downward spiral of politicization end? What happens when we complete the conceptual reorientation and see judging as a mere extension of ordinary politics? Nothing good. The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points. Tom Harkin watched The Bachelor last night. But did he sleep peacefully, his dreams untroubled by the damage that both parties have done to the rule of law? I hope not. Thursday, June 05, 2003
The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part Two: Stare Decisis and the Ratchet.
The Ratchet The argument called "the ratchet" is actually a cluster of related arguments. All of the arguments share a common structure. Let me begin with a fairly standard statement of the argument:
A Game Theoretic Model of the Ratchet
Right: Ul(S) = S.
Round 2, Right-formalist = 0, total = -1. Round 3, Left-realist = -1, total = -2. Round 4, Right-formalist = 0, total = -2. Round 5, Left-realist = -2, total = -3.
Round 2, Right-formalist = 1, total = 0. Round 3, Left-realist = -1, total = -1. Round 4, Right-formalist = 1, total = 0. Round 5, Left-realist = -1, total = -1. An Extension of the Simple Model Let's extend the simple model. Let's assume that both players derive utility from the rule of law (stability and certainty). So let's assume that right player derives a utility equal to zero minus half the absolute value of the change in the state of the law from the previous round added to the utility derived from the state of the law. The left player has same utility function, modified to account for the fact the utility function of the left derives higher values from positions on the line that are to the left:
Ul(S{x}) = S{x} + 0.5 * |S{x}-S{x+1|}l Back to Stare Decisis You, gentle reader, are probably getting quite impatient. My abstract model is aimed at formalism and realism, but the topic at hand is stare decisis. You have already observed, no doubt, that both the simple model and the extended model can be applied to stare decisis. But here is the crucial point. Even if you are a formalist, you may reject the idea that following stare decisis is the formalist move. Or more precisely, you may believe that there are different conceptions of formalism and that the best conception does not incorporate a principle of strong stare decisis for courts of last resort. Let's simplify and assume that one conception of formalism is textualism, the view that judges on courts of last resort should adhere to the text, even if it is contrary to precedent. Textualism versus Realism So let's think about the implications of our model for the textualist. Let's and assume that we have a two player game. One player is "textualist," and the other player is "left realist." This game is much more complicated than our prior game, because we now have a two dimensional space for the state of the law. Textualist's evaluate the state of the law on a real line that runs from Fidelity to Text to Disconformity to Text. Left realists evaluate the state of the law on a real line that runs from Left to Right. Some left outcomes rank high on fidelity to text; others rank low. It is a matter of great controversy whether textualism as a theory tilts to the left or the right, but (simplifying greatly) it is commonly assumed that textualism probably tilts right. Arguendo, let's go with this simplifying assumption. Notice that even after this simplification, a formal model of the game would be extremely complex. Nonetheless, we can intuitively grasp what a complex model would reveal. The game between textualists and left-realists will have the general structure of the simple model above. On average, gains for left-realists are losses for textualists and vice versa. Now, consider the decision whether to follow precedent. If the textualist follows precedent and the left-realist does not, we have the ratchet. After each round of play, the law will have moved further away from Fidelity to Text and closer to Disconformity to Text. This is "the ratchet" as applied to precedent. Ideal and Nonideal Theory We need another distinction to allow a meaningful evaluation of the ratchet. Following Rawls, let's distinguish between ideal and nonideal theory. In our context, ideal theory involves making the assumption that judges perfectly comply with our theory of judging. Nonideal theory relaxes the perfect compliance assumption, and it is very important to specify with precision exactly how the assumption is being relaxed. The ratchet simply does not favor textualist formalism over a formalism that also incorporates stare decisis and one that does not is relatively easy as a matter of ideal theory. In the realm of idea theory, there are no realists to create a ratchet effect for realist precedents. The ratchet gets going when we move to the case of nonideal theory, imagining that the world is divided into two camps, only one of which will adopt some version of formalism. Here is the important point:
Politicization and the Ratchet So let's not assume that that the good guys comply perfectly with our best normative theory of judging and the bad guys just do what they please. But we don't want to resort to ideal theory--that doesn't get at the interesting questions. So let's assume that both the left and the right are capable of acting so as to advance their political ideology at the expense of the rule of law. And let's assume that both the left and right are capable of cooperating so as to advance the rule of law, if, but only if, they believe such cooperation is in their long-term self interest and also believe that they have good reason to trust that the other side will not defect from the cooperative scheme. And then what? And then we have reason to believe that the current situation can go one of two ways. On the one hand, if both sides treat the situation as a zero sum game, we can continue the downward spiral of politicization. On the other hand, if both sides can come to see that the rule of law is in their long-run self interest and come to have reason to trust the other side, it is possible to pull out of the downward spiral and begin the process of rebuilding the rule of law. That is all very abstract. How does it apply to stare decisis? The Role of Stare Decisis in Restoring the Rule of Law
A Fair Description of the Players Here is where I'm gonna lose you. There are few devils and fewer angels among the players of the judicial selection game. The left does not consist of unprincipled realists, willing and able to sacrifice the rule of law on the altar of poetically correct results. The right is not made up of hypocritical formalists, devoted to text and original meaning only when and because it advances their agenda, willing to don realist garb as soon as the 11th Amendment or a Presidential election is at stake. But . . . And this is a big but. But both sides are all too ready to see their rivals in the worst possible light. Both the left and the right see the value of the rule of law. Both the left and the right are afraid that if they decide cases on the basis of the rules laid down, the other side will take advantage. Both the left and the right see their rivals as fundamentally untrustworthy. A fair description of the players depicts few devils and fewer angels and many, many well-intentioned but fallible humans. The Options So given the lay of the land and a realistic assessment of the players, what are the options. How can we prevent a downward spiral of politicization? How can we restore the rule of law? Here are some options.
Wait for a Crisis Pessimists on both sides despair of any solution short of a crisis. The downward spiral must run its course. When things get bad enough, then, and only then, will there be sufficient political pressure to break out of the prisoner's dilemma. But the pessimists are not pessimistic enough. Because it isn't clear that it is so easy to pull out of a downward spiral of politicization once you are at the bottom. The bottom is inhabited by thoroughly corrupt judges who see every case as a patronage opportunity and lawyers who see briefs and arguments as less than mere window dressing. One of the dirty secrets of American law is that we have already hit bottom--in counties in Southern Illinois, in Texas, in Louisiana, and elsewhere. Wait for a Crisis is surely the option of last resort. Formalism With Weak Stare Decisis And this brings us to one of the current favorites. Many formalists (on the right) are tempted by the idea that we can have formalism without stare decisis. Judges should adhere to the plain meaning of the constitutional text in light of the historical evidence of original meaning. This is sufficient to restore the rule of law, and it has the great tactical advantage of allowing the Rehnquist (soon to be Thomas?) Court to roll back the realist decisions of the Warren and Burger Courts. But this is not a stable solution, once we think about the reaction of the left. On the hot button issues, the text and history allow too much room for maneuver. Even if the left were to embrace formalism without stare decisis, we would expect that the struggle to politicize the court to continue--the terms of debate would be different but the underlying realpolitik would be the same. And there is an even more fundamental problem, formalism without stare decisis looks like it has been jury-rigged in favor of those outcomes the right prefers--especially given the current political situation and composition of the Court. And because formalism without stare decisis will be perceived as unprincipled, as a program for the restoration of the rule of law it is doomed to failure--unless supplemented by total victory. Formalism With Strong Stare Decisis And that brings me to the final option of my list--formalism with strong stare decisis. Would this option create the possibility of restoring trust? Here is the interesting point. The very argument used against strong stare decisis--the infamous ratchet--explains why stare decisis is likely to be effective as a confidence building measure. If formalist judges of the right are willing to respect realist precedents of the left, this is a clear and convincing demonstration that the right is serious about the rule of law. And there is more good news. The judicial selection/decision game is not a zero sum game. Both sides lose from a downward spiral of politicization. Both sides gain from the rule of law. Trust is the key to the emergence of a stable, cooperative equilibrium with both sides committed to appointing formalist judges and each side willing to allow the other the privilege of appointing judges from its own party. Part III: Precedent and Principle Thursday, April 24, 2003
Downward Spirals Department Today's New York Times has an editorial opposing the confirmation of Judge Carolyn Kuhl to the Ninth Circuit. In the current political climate, charges of politicization usually are made by Republicans against Democrats (switching roles from the Clinton years), but the NYT editorial argues that giving Kuhl a hearing constitutes an escalatory move by Republicans:
Post Script: And speaking of downward spirals, check out my colleague Rick Hasen's post on recent proposals for President Bush to do an end run around fillibusters and blueslipping by making use the recess appointments clause. And Brett Marston on the history of recess appointments. And Howard Bashman on the constitutionality of recess appointments with more here. New: I have added a post to Legal Theory Annex that gives links to all of my posts on the downward spiral of politicization in one handy dandy spot. Wednesday, April 02, 2003
Downward Spirals Department My colleague Rick Hasen posts on a change in the Senate Judiciary Committee's blue slip procedure. The issue arose in connection with Carolyn Kuhl's nomination to the Ninth Circuit. Here is an excerpt from the L.A. Times story:
Thursday, March 20, 2003
Downward Spirals Department Rick Hasen has been blogging recently on the mysterious Washington Times story indicating that the Republicans may "go nuclear" in response to the Democratic filibuster of Miguel Estrada. Another reader sent me a link to an NRO Outline Story indicating further escalation from the Democrats:
Post Script Hasen has a new post on the history of the recess appointments clause in the context of judicial appointments. Post Post Script Rick replies to the above, arguing that the Michigan Democrats are engaged in simple tit for tat. Well, yes, it is tit for tat. But in a standard iterative prisoners dilemma, you don't expect tit for tat to continue, on and on, for many rounds (in the real world, years) of play. Is this an escalation? I don't know, but I think it is at least unusual to use the blue-slip procedure to block all Presidential nominees from an opposition party state. But as Rick notes in his response, Jesse Helms did this same thing during the Clinton Administration! Thanks Rick. Monday, May 12, 2003
Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
Building the Model: Step One: A Two Dimensional Analysis of Judicial Candidates In the actual world, the evaluation of judicial candidates is multidimensional. Candidates have positions on a variety of issues of interest to Presidents and Senators, from freedom of speech to federalism. Candidates also have complicated judicial philosophies, with views on issues like theories of statutory and constitutional interpretation, stare decisis (precedent) and so forth. To build a model, we must simplify. So I am going to make a huge simplying assumption, i.e. that judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
--Judicial Philosophy. I assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
Building the Model: Step Two: How Selectors Rate Candidates Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
--The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right. ___________________Acceptability Frontiers for President & Senate __Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Building the Model: Step Three: Candidates Inside the Confirmation Zone Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone:
Building the Model: Step Four: Candidates Outside the Confirmation Zone Given our simple model, judicial candidates from outside the zone are unconfirmable. Let's extend the model and consider reasons for nominating a canidate from outside the confirmation zone. Here are some possibilities:
--Asymmetrical Information About Acceptability Curves. The President and the Senate may not know the shape and location of each other's acceptability curves. The President might believe that the Senate's curve is to the right of its true location, resulting in an erroneous belief that the nominee would ultimately be confirmed. Both the President and Senate may have incentives to mislead each other about the true shape and loocation of their acceptability curves in order to gain strategic advantages in the bargaining process. In other words, bluffing may be part of the confirmation game. --Uncertainty About Judicial Philosophies. Canidates with long judicial records may have displayed their judicial philosophies in their prior decisions, but some nominees have no judicial experience. In such cases, it may be difficult to make a reliable estimate of the position of the canidate on the judicial philosophy line. Suppose that the Senate adopts a maximin strategy for coping with this uncertainty--essentially assuming that the candidate is close to the top of the scale on realism. Suppose further that the President either has better information or simply assumes that the candidate has an average score. This could result in a the President believing that the canidate is inside the confirmation zone and the Senate (or Senate Minority) believing that the same canidate is outside the zone. Give such asymmetrical beliefs, unconfirmable candidates might be nominated. --Horse Trading. For a variety of reasons, either the President or the Senate might be willing to accept a canidate on the wrong side of their respective acceptability curves in exchange for some other political favor. Applying the Model Let's leave the model behind and turn back to the actual world of Bush and Schumer, Owen and Estrada. Does the model help us to diagnose the causes of the confirmation wars? Maybe. I really want to think more about this question, but I would like suggest one possibility. It is possible that Democrats are systematically biased to believe that Republican nominees are more realist than they really are, and that Republicans are systematically biased to see the very same nominees as more formalist than they really are. If this were the case, then Democrats might percieve a particular candidate E as above thier acceptability line, whereas Republicans might perceive that the same canidate as below the line. This situation might be represented as follows, with d(E) representing the Democratic belief about E's position, and r(E) representing the Republic beief about E's position. As before, the diagram cuts off the acceptability curves just a bit above the confirmation zone:
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