Wednesday, November 02, 2005

Posner, Easterbrook, and A3G's "Principled Hack Theory"

Richard Posner and Frank Easterbrook, judges on the Seventh Circuit Court of Appeals, are two of the most highly qualified candidates for nomination to the Supreme Court. They rank #1 and #2 by a large margin, for example, in the Choi-Gulati Bill James-like attempt to evaluate federal judges by objective criteria. They are both Republican appointees, so why didn't they garner more consideration as potential SCOTUS nominees in the last couple months?

Article III Groupie offers an explanation:
What every president is looking for in a Supreme Court nominee is "a principled hack." This contradiction-in-terms sounds nonsensical, but it's actually quite logical; allow A3G to explain.

Presidents want the justices that they appoint to be political hacks -- i.e., reliable votes in favor of the president's desired political outcomes, be they liberal or conservative. But presidents also want their nominees to have a pre-confirmation record of adherence to principle. Besides being a good thing in and of itself, a record of being principled may facilitate the confirmation process, by allowing the candidate to defend prior rulings or past actions by saying, "Hey, look, those weren't my personal views; I was just following certain principles." Once the nominee gets confirmed, the ability to appear principled continues to be a helpful, since the nominee can justify votes in favor of a particular outcome by reference to a larger jurisprudential framework (e.g., the originalism of Justice Scalia, or the originalism-with-minimal-stare-decisis of Justice Thomas).

Jurists like Judge Easterbrook, Judge Posner, and Judge Kozinski are very committed to principles and the rule of law (which is why they are so widely admired, in addition to being brilliant). The problem with them as Supreme Court nominees comes from the second part of the test: they are insufficiently hack-like. They are not rigid enough in their voting patterns, occasionally voting for outcomes that are politically unpalatable, when their review of the law convinces them that such a result is required. In short, they vote with their consciences, deciding cases based on their honest views of the law, with no consideration for how their ruling might affect their possibilities for promotion.

With Posner, at least, there's probably more to it than that -- namely, his 1978 article (with Elizabeth Landes) suggesting that babies be bought and sold on a free market as a more efficient alternative to government-regulated adoption. (With no price mechanism in place, the demand for newborns far outstrips the supply even while millions of unwanted fetuses are terminated.) For some reason that was considered controversial in some circles. Nonetheless, I think A3G's analysis is largely correct and is a big part of the story.

By the way, Judge Posner's got a blog (along with economist Gary Becker). Check out the link over on the right.


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