Cass dismissed

BY ALLISON WHITE

CASS SUNSTEIN WANTS TO prove that ideology sends judges in the wrong direction, but all he’s proven is that ideology sends Cass Sunstein in the wrong direction.

Sunstein, University of Chicago-based legal scholar and advisor to Senate Democrats in the judicial nomination battles, published a draft study on the relationship between political ideology and judicial decisionmaking.

He’s rather proud of his findings, in case you didn’t notice. Then again, considering that he promoted them months ago in a New York Times op-ed, in an issue of The American Prospect and in his latest book, it’s been hard not to notice.

As Sunstein purports to demonstrate (available at http://papers.ssrn.com/abstract=442480), GOP- and Democrat-appointed appellate judges tend to reach judgments in accordance with traditional values of the respective parties that nominated them, and that tendency is exacerbated when the panel on which they served includes more judges appointed by the same party.

Even ignoring for the moment critics of his statistical analysis (and there already are eager critics), Sunstein’s conclusion does not at all follow from the numbers. He argues that, because ideological panels reach more partisan results, the Senate should aim for a more diverse federal judiciary in its confirmation process.

“Diversity,” in Sunstein’s world, still “is our greatest strength.”

But this conclusion is only warranted if all judicial ideologies (represented by proxy in his study by the political ideology of the President making the appointment) are created equal. I certainly won’t grant him that assumption.

First, one party as a matter of principle nominate judges who judge according to the constitutional text, and those judgments may tend to align with that party’s platform. Or a party may focus on results, nominating judges whose judgments align with the party’s political outcomes, and those judges tend to arrive at those results after engaging in a textualist analysis (while the approaches seem like two sides of the same coin, they differ in intention: either principle- or result-driven). But in either of these hypothetical cases, while Sunstein’s stat work may be correct, his prescription is wholly unwarranted. In each of those cases, confirmation of more “diverse” (i.e., fewer Originalist) judges will weaken the judiciary’s ability to fulfill its Constitutional task.

Critics of Textualism will object to my presumption that it furthers “good judging.” Fair enough – that is the key debate. And there lies Sunstein’s major failing: he discards without argument Originalism and Textualism, assuming that in some cases there are no “right” answers, and further assuming that a “diverse” judiciary leading to non-ideological outcomes will further “good” judging.

He discards the possibility that textualist or originalist analysis is inherently superior. He warns that, without diversity, “judicial panels are will [sic] inevitably go in unjustified directions.” He doesn’t explain what justifies the judgment of the court. He won’t point to Constitutional text. He only points to “diversity.”

In short, Sunstein’s core argument for diversity is held together, without argument, by a jurisprudence worthy of Golden Oldies radio:

You say “toe-may-toe” –

I say “toe-mah-toe”.

You say “power to regulate interstate commerce” –

I say “plenary power to regulate all aspects of societal activity.”

Let’s call the whole thing off!

Sunstein’s analysis does not go so far as to argue that there are no objectively correct legal judgments: “[T]he domain of appropriate diversity is limited. What is necessary is reasonable diversity.” He would not agree with a judicial prohibition of abortion, even if ten thousand diverse judicial panels affirmed it. His restriction contradicts his own analysis; while he won’t agree that there is an objective standard underlying the Law, he knows, somehow, that there is an objective standard underlying the standard underlying the Law.

(I hope that that doesn’t keep him up at night.)

The failures of Sunstein’s study aside, the deeper problem with Sunstein’s work is that he has cloaked in the robes of nonpartisanship a deeper, highly partisan motivation. He does not want diversity for diversity’s sake. He wants diversity because it is the immediate means by which he can further his own political preferences.

His political preferences are easily located; in TAP they included: maintaining a distinction between commercial and political speech in order to control commercial advertising by tobacco companies; minimizing application of the Takings Clause to environmental and other regulatory legislation; and, of course, protection of affirmative-action programs.

Sunstein, like the Democrats on the Senate Judiciary Committee – and, dare I say, much of the HLS faculty – is well aware that his political sensibilities cannot be fulfilled within the four corners of the constitutional framework and the statutes enacted under that framework. His policies are best protected by an exclusively liberal judiciary. His policies are often protected by a “diverse” judiciary – at least more often than by a textualist judiciary. Given the current state of political affairs, his best opition is not available. Of course he embraces “diversity.”

In TAP, Sunstein criticized conservative judges who “seem to think that the Constitution should be interpreted to overlap with the latest Republican party platform.” He utterly dismisses the possibility that the platform is, relative to the Democrat platform, more aligned with the limitation and separation of powers under the Constitutional framework. This state of affairs is not a failing of GOP-appointed judges; it is a failing of a Democrat party eager to enact its policies, Constitutional text be damned.

* * *

Even if Sunstein is absolutely correct in all of his analysis, then conservative law students should take heart. If courts would benefit from diversification of their personnel, then so would law schools (assuming, of course, that law schools are still in the business of teaching law). And given that HLS’s faculty is, at its most moderate, firmly Center-Left, local adherents to Sunstein’s theories should begin “diversifying” the faculty by demanding the addition of conservative professors.

How wonderfully diverse.

Adam White is the Editorial Page Editor of the Record. His column appears weekly.

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