Bench Memos

NRO’s home for judicial news and analysis.

Balancing Test


Keith Whittington’s article shows that all this “balance” talk is a lot of baloney. He relies in part on several telling examples: Should LBJ have appointed a reactionary to an already liberal Court, instead of Thurgood Marshall? How about FDR? When the conservative “four horsemen”
(McReynolds & Co.) began retiring, should he have sought like-minded replacements to maintain “balance”? Here’s one Keith did not use: Should Lincoln have sought to keep the Court delicately divided between those who thought that Dred Scott was rightly decided–and those who didn’t?

At this rate it will not be long before John Roberts’ intelligence is used against him. Which Democratic senator will follow in the shallow footsteps of Roman Hruska (R., Neb.), who famously proposed affirmative action for mediocre people in judicial appointments?

Keith’s article suggests one thing about the Democrats’ position which is not simply sausage. Do not the calls for “centrist,” “mainstream,” and “moderate” views in a nominee–all to “balance” the Court–imply that, to constitutional questions at last, there are no right answers? (By
“right” here I mean “correct.”) According to this middling logic, you can
get too much of a good thing. By the “balancer’s” logic, even if Stevens (or Scalia) were right about the Constituion, we would not want nine Stevens (or Scalias). “Balance” implies a roughly equal number of people with irreconcilable views. Irreconcilable views can’t all be right.

A senator who looks at confirmation this way holds that neither Ginsburg nor Scalia nor Thomas nor Stevens is “right” about (you pick it) church-state, abortion, or federalism. Their positions are not interesting to the senator as possibly correct answers to constitutional questions. Their views are instead just so much data for the Senator to churn, churn, churn. His task is is not to decide if John Roberts is right (that is, correct) about anything. It is rather to figure out whether his particular point of view–whatever it is, right or wrong but so long as (I guess) it is in the “mainstream”–is proportionally represented on the Court.

Keith quotes Senator Schumer as saying that an “excellent” Court would have one Brennan and one Scalia. Well, an interesting Court, maybe. But Brennan and Scalia were not both right about the issues that count. They disagreed across the board: One had to be wrong. (Of course, both could be.) Assuming, then, that Senator Schumer favors an “excellent” Court, he invites us to believe that he would confirm someone whose views on all the issues that count were grossly mistaken. Senator Schumer wants us to believe he would and that other Senators should vote to confirm, say, Robert Bork or Edith Jones or Matt Franck to the Supreme Court to fill the seat of a departing conservative. (All are good ideas, by the way.)

Schumer seems to be thinking of constitutional law as an extension of ordinary politics, laden perhaps with a peculiar rhetoric but with no intrinsic normative criteria different from those of public decisionmaking generally. In his view, what the courts do stands to the Senate as perhaps the Senate stands to the House. A bit upmarket, but no different in kind.

But, if this really is his view, Schumer’s conclusion makes no sense at all–unless we are to believe that Schumer would recommend to the voters of Pennsylvania, for instance, that they return Rick Santorum to the Senate in 2006. An “excellent” Senate would, after all, have one Santorum and one


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