Ramesh, Thank you for your characteristically gracious response. I am back to

my wiser practice of agreeing with you. To the extent “ideology” should be

understood as including the judicial function – particularly, whether a judge

deems himself free to legislate his subjective sense of justice rather than

bound by the constitution and laws – I agree that this is a proper basis for

voting against a nominee (although I have doubt about whether it would be an

appropriate basis to filibuster a nominee, since I think congress owes the

president an up or down vote on nominations). In a more perfect world,

commitment to proper conduct of the judicial function would be an aspect of what

we think of as “competence,” but that ain’t the world we’re in.

I wonder, though, how far into the weeds we should be willing to go on this.

Should judges, for example, take account of legislative history? I personally

think Justice Scalia is right when he says no, but there are many fine judges

who think otherwise and who try to apply legislative history honestly. Given

the divergence of opinion among reasonable jurists on that one, I don’t think

I’d be comfortable relying on it as a reason to vote against a nominee even

though it implicates the judicial function. But on the more macro aspects of

the judicial function – e.g., the nominee who thinks he can undo a law on the

ground that he personally thinks it is foolish as opposed to unconstitutional –

I think that’s absolutely a basis to vote against him.

Interesting and timely question: what about a nominee who believes it is proper

to resort to foreign law (or treaties unratified by the U.S.) in interpreting

U.S. constitutional provisions? I’m sure we’d agree that’s a bad thing. But,

as a standalone, is it a justification to vote against confirmation? And does

it matter if the nomination is to the Supreme Court or the lower courts? My gut

tells me it probably is a good enough reason to vote against confirmation, at

least at the Supreme Court level, but I’d need to think about that some more.

You’re right to point out our common ground on priorities. I regret if I

misunderstood or misstated your position. Obviously, a disagreement about how

best to achieve what is important is of less moment than a disagreement about

what is important.