Friday, November 30, 2007

Eisgruber Respondeth

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory.

One further thought on Eisgruber's proposal for moderate Justices. The best way to achieve this would probably be a structural mechanism, such as a requirement of super-majority confirmation. We have a de facto version of that in the possibility of a filibuster of judicial nominees, but the threat of the "nuclear option" doing away with the filibuster is powerful. Thus, even though Justice Alito received fewer than 60 votes to confirm in the Senate, some of the Senators who ultimately voted against confirmation had earlier voted for cloture. Whether the Republicans would have "gone nuclear" if the Democrats had held fast and filibustered is not clear, but the very possibility may have had a chilling effect, and explains why we do not have a strong de facto super-majority requirement. Getting a real super-majority requirement for confirmation would require a constitutional amendment, which may explain why Eisgruber doesn't advocate it (as such an amendment would be extraordinarily difficult to enact).

Posted by Mike Dorf