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Bench Memos

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The Filibuster and “Partisan Retrenchment”



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Professor Jack Balkin of the Yale Law School is a prominent and important constitutional law scholar. And, he runs a blog, “Balkinization,” where his latest post explains, from his perspective, “what is at stake in the nuclear option”. He writes: “[T]he controversy is about more than whether these seven individuals become federal judges. It is about the relative power of the two parties going forward and about the likely content of constitutional law in the next generation. Both of these things are eminently worth fighting about.”

In particular, Balkin contends that–because the Republicans “currently hold all three branches of government”, and have won the “constitutional trifecta”–the filibuster is the only tool available to Democrats (who, Balkin insists, have “too little” power “given their public support”) hoping to derail President Bush’s efforts at “partisan retrenchment.” This is a strategy in which “a determined President stocks the life-tenured federal courts with ideological allies. Through this strategy (1) the President can alter the positive law of the Constitution by tipping the working majority on the Court in the direction of his ideological allies; (2) the President can assure a more friendly federal bench that will cooperate with and support his legislative and policy initiatives; and (3) the President can install his ideological allies in life tenured positions where they will continue to have influence long after the President has retired and his Party has lost power in the political branches.”

Professor Balkin is right about this: It really does matter who ends up sitting on the federal courts, because–given the extent to which we have “constitutionalized” nearly every important policy and moral debate–the views and premises of today’s nominees will likely shape our law and society well after the President who nominated them has left the political scene.

Professor Balkin is wrong, though, to frame as some kind of ominous power-grab the utterly unremarkable efforts of a reelected Republican president to appoint judges who appear likely to interpret the Constitution in a way that coheres with that president’s understanding of the rule of law, the role of the judiciary, and the structure of our federal system. To the extent the “partisan retrenchment” theory is helpful, it cannot apply only when one disapproves of the president and his “ideological allies.”



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