Political Theory (Loosely Interpreted): July 2009 Archives

A friend of mine on Facebook left a comment in response to a status update to the effect that there's an inconsistency in much of the rhetoric from the left when it comes to our attitude toward the next generation. I think this is a problem for both sides, actually. You can often find people who will issue very harsh criticisms of those on the other side for ignoring the devastating consequences of either inaction or a particular course of action on a certain issue, while the same people will ignore the devastating consequences of inaction or a certain course of action on a different issue.

You hear a lot about how we're failing in our responsibilities to the next generation if we allow climate change to continue at the rate it's going. Yet the same people who make these urgent calls to think about the next generation are happy to spend massive amounts of money that we couldn't hope to pay for in several generations, even if (as is likely) President Obama has to settle for significant departures from his campaign promises about taxes. (See note 1 below for more on this, which I decided was too intrusive to my argument to keep here.)

I would add that they're also happy to impose regulations that will almost certainly generate hardships for lower-earning wage-earners both in making it more difficult to buy new houses and cars with something like the cap-and-trade proposal currently at work or providing health insurance for people who don't have it, at the cost of making health care much worse on the whole for many people, including lower wage-earners whose employer currently does provide health insurance but who will be forced to move to worse health insurance as a result. (See note 2 for my own situation with respect to this, which I wanted to say something about but was also becoming too intrusive to my argument.)

But on the right, you can have similar inconsistencies. Some conservatives favor significant environmental regulation, but most want it limited. Some reject it entirely. Some of those who reject it are nevertheless environmentally conscious, taking it to be a problem we should do something about. For example, Dick Cheney, who is very generous with his money with regard to charitable donations, gives quite a lot of money every year to conservation-related charities, a good portion of of which (I believe) goes toward exploring technologies that will help deal with environmental problems more effectively than regulation could ever do. But there are conservatives who are simply not interested in environmental concerns, who nevertheless put a lot of effort into criticizing the Obama Administration and the current Democratic-led Congress for not caring about the future generations with their ridiculous levels of spending and regulation that will certainly have a negative impact on the next generation.

There's an ongoing debate about exactly what role senators should have in the process of confirming judicial nominees. The Constitution gives the President the role of appointing people to certain positions, including "Judges of the Supreme Court", but this role is qualified. It is to be done "by and with the Advice and Consent of the Senate".

At this point there are two main views about what that advice and consent is supposed to be. Some senators have consistently maintained that ideology can play a role. If a senator disapproves of the ideology or perceived ideology of the nominee, it's perfectly fine to vote against the person's confirmation. Other senators have consistently maintained the view that senators should give significant deference to the president, voting to confirm any mainstream nominee who is qualified enough, even if the person tends significantly to the other side of the political spectrum or to a contrary judicial philosophy.

There are reasons for each view. Deference to the president makes some sense. When we vote for president, we do so while knowing what sort of judges the candidate is likely to appoint. Anyone who voted for Barack Obama while thinking he would appoint judicial conservatives to the bench is an idiot. Anyone who voted for George W. Bush while expecting him to appoint liberal justices to the Supreme Court wasn't paying attention to the kinds of justices he said he admired and would appoint. Mistakes can happen (as with Justice Souter with Bush's father), but you shouldn't expect your preferences to be fulfilled with judicial appointments if you vote for someone for president who has opposite preferences. Senators on the other side might say that elections have consequences and that presidents are owed some deference due to the political process. On the other hand, elections have consequences. Senators are elected. They represent the preferences of their constituents, and isn't the function of senators in judicial appointments part of what you should consider when you vote for someone for that office? So even on the democratic process argument, you might think it cuts both ways.

But other considerations have been offered against giving presidents a lot of deference on judicial nominations. One problem is that you still need to decide when to defer and when not to defer. How far outside the mainstream counts as sufficiently outside? Chief Justice Roberts and Justice Alito were both presented by Democratic senators as being outside the mainstream of conservative thought on evidence that's actually pretty similar to the evidence being used to argue that Judge Sotomayor is not outside the mainstream of judicial thought. It turns out, then, that this view isn't really a coherent, unified position. It's not about whether to give the president deference but about how much deference to give the president.

No one wants the Senate to rubber-stamp whoever the nominee is no matter what, so qualifications must matter, but it's not clear the ideological considerations are really separate from qualifications. Some would argue that an ideology that's very extreme actually disqualifies someone from being a good judge, because a good judge would interpret the law accurately and fairly, and extremist judges of certain sorts do not. But according to a judicial conservative, liberal jurisprudence then counts as a lack of qualifications. Any nominee who is ideologically liberal in terms of judicial philosophy is not a qualified nominee, and senators can vote against them on that basis and call it a matter of the nominee not being qualified.

So I'm no longer sure that the distinction between qualifications and ideology really explains much in terms of what senators should pay attention to, at least not in any way that will be agreed upon by a significant number of senators. Several other considerations also might favor looking to ideology. Some have argued that too much deference to the president leads to extremist judges on both sides, since presidents will get away with as much as they can if the Senate just defers.

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