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Bench Memos

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On Professor Bainbridge



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Jonathan Adler draws our attention to the always-thoughtful and usually-right (in both senses: conservative and correct) law professor Stephen Bainbridge. Bainbridge dissents from the conservative chorus on “the deal.” He instead praises the filibuster as “profoundly conservative,” for it allows a “resolute minority” to “stand athwart history” and to delay if not stymie change. This is, evidently, a good thing. For Professor Bainbridge it is, at least, “conservative,” and that is good enough. Besides, he says, we may need the filibuster if a Democratic president nominates Larry Tribe for the Supreme Court.

I am reluctant to disagree with my friend and former teaching colleague on this, or on any other issue. But this time, for once, Bainbridge is mostly wrong. Now, “mostly wrong” is also “slightly correct”: no doubt the filibuster does delay, if not stymie, change. And let’s not quibble over whether it is inherently or “profoundly” conservative to introduce change slowly. If Bainbridge wants to say that conservatives are just people who favor (invariably?) protracted, organic change, so be it. But that use would be entirely non-evaluative; it implies nothing about justice or what is right. It is just a definition. In reality, however, delay can be profoundly unjust, as it is when the protection of homicide laws is denied to a whole class of human beings, resulting in deaths numbering in millions. Not a single abortion performed today, tomorrow, next week, or next year (or the year after that) is any less unjust because of the “conservative” view that legal change on this issue ought to occur slowly.

Now, overturning Roe so that each state gets to decide what abortion laws it wants is a pretty “conservative” idea, too. And that is what a lot of so-called conservatives had invested in the constitutional option undermined by “the deal”. Besides, on the precise issue before the House–whether the “advice and consent” of the Senate to the president’s judicial nominees should require a supermajority vote–there is no intrinsically “conservative” view. It is easy to imagine slowing the confirmation process down.

Why call a leisurely pace “conservative”? Or, if you prefer, call it “conservative.” Either way, does that mean I should change my opinion about the Constitution? The Constitution could have required House concurrence. But it did not. The Constitution could have required the two-thirds vote in the Senate that is required for treaties. But it did not. The Constitution could have required that nominations originate in the Senate, perhaps with presidential concurrence, a sort of veto which could be overcome by later supermajority vote in the Senate and/or House. But it did not. Is the Constitution not “conservative”? Is it “liberal”? Who is to say.

I am not personally worried about a Tribe nomination to the Supreme Court, so long as even just one senator has a copy of Henry Abraham’s book.



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