Balancing the Court

JB

This op-ed by John Manning in the New York Times makes the unexceptional point that the President has no obligation to "select nominees who will leave the court's ideological composition intact." Many past appointments have shifted the Court's ideological balance; indeed that is what Presidents often try to do when they select nominees. And preserving the existing balance exactly is impossible to achieve in any case, as no two individuals have exactly the same views.

But in another sense Manning's op-ed hides the real issue: When people talk about preserving balance they don't really mean that preserving balance is *always* required or that new Justices should be exact replicants of those they replace. When Manning says this he is attacking a straw man. Rather, people who argue for "preserving balance" are making claims about the Court's future direction from a position of relative political weakness.

People who argue for preserving balance on the Court are usually people who stand to lose if the President shifts the balance by appointing Justices with an ideology importantly different from their own. They argue for preserving balance because doing so invokes norms of fairness and representativeness. These norms are not illegitimate or irrelevant to the debate over the Supreme Court. But it is important to recognize that if the very same persons controlled the White House, they would not hesitate to offer nominees that would shift the balance in their preferred direction. Hence demands for preserving balance usually reflect the relative political weakness of persons who make the argument.

The Supreme Court's decisions in a small number of hotly contested areas are strongly influenced by the ideological views of its members. Changing the Court's personnel changes the likely outcomes of these cases because it changes the balance of decisional power on the Court, in particular, by changing who the swing or median Justice is.

Manning adverts to this fact when he attacks the view he attributes to proponents of preserving balance: "that nothing can ever be gained from a change in the perspective, experience or philosophy of any justice." But Manning's plea for fresh ideas and perspectives is somewhat beside the point: People who argue for preserving balance aren't worried about gaining new perspectives in the abstract. They are worried about gaining a new median Justice, with all the changes in the direction of doctrinal development this will bring. That's what the debate about balance is really about.

Unfortunately, Manning avoids engaging the point directly, arguing at the end of his piece that ideology is largely irrelevant and qualifications and temperament are most important: "Even if he turns out to be, by some measure, more conservative than Justice O'Connor, Judge Alito - like Judge Ginsburg - surely has the temperament, intelligence and judicial integrity to merit confirmation to the Supreme Court."

I agree with Manning that Presidents are not required to preserve ideological balance on the Supreme Court. But I also believe that other people have a right to oppose the President if they believe that the new nominee will shift the Court in directions that they believe are bad for the country and inconsistent with the best interpretation of the Constitution. Manning's argument that preserving balance is logically impossible and that qualifications should be paramount refuses to engage with the reality of Supreme Court decisionmaking and with the fact that the confirmation process is a key method for the political process to send signals to the Court and shape its future direction. That is what the debate over "balance" is all about.