Even from a demand side perspective, the theory fails to account for the difference between what the public might demand, and what the political class, in this case represented by the President and Senate, want. If judicial selection is going to give us anything in the long run, it's the latter, not the former.

Indeed, constitutional 'change' by way of the judiciary represents less a display of democracy in action, than an end run around it, given that it's capable of generating 'change' which could never survive democratic ratification if proposed as an amendment.
 

Demand side, supply side, whatever, it all boils down to the trickle down theory. Look at the results of the trickle down theory of economics a few decades ago that ended up as "Piss on you" while the political elites enjoyed swimming in the pool.

Perhaps at the SCOTUS level there ought to be more diversity rather than ALL of the Justices coming from the judge pool. Would what we recognize as individual rights today have come about but for an Earl Warren, a former Governor? Perhaps today's pools are too limiting by focusing upon those serving in the judiciary. What's wrong with politicians, academics, just plain practicing attorneys? A pool limited to the judiciary can be quite shallow.
 

I had to laugh at the references to "supply side". Conservatives just can't let this go -- they're wrong on economics, so they drag the theory into other arenas where they can be equally wrong.

In any case, the "supply side" theory doesn't seem to me to add much. The same political forces which create Prof. Balkin's "vector sum" do so precisely because they create all the subsidiary and supporting roles deemed necessary for their success. The supply side, as always, is inherent in the demand side, in politics just as in economics.

The size of the "pool" doesn't strike me as very limiting even on its own terms. A society of 300 million people only has to fill, what, 100 judicial positions per year? And one Supreme court justice every half-decade or so? That's not much of a constraint even if the supply side theory had any validity.
 

Demand side, supply side, who cares? If you 'change the meaning' of a written document without changing the words that make it up, you sacrifice the point of having written it down in the first place.

Does anyone really think there are no consequences to the judiciary's claimed meaning of the Consitution taking this drunkard's walk away from what the text actually says? The judiciary are playing the role of the courtiers in the Emperor's new clothes, but all this long winded rationalization doesn't keep people from noticing that the Emperor is naked.
 

a provocative posting mr. teles .. many thanks from one man on the river ..
 

I'm in a bit less of a rush now, and can be longer winded.

It's unreasonable to expect judicial appointments to track or converge on public opinion over the long run for several reasons:

1. The opinions and interests of officeholders are systematically, persistently different from that of the public. It is pretty much always in the interest of officeholders to increase the power their office wields, reduce the limitations on their use of that power, and to advantage incumbents relative to challengers. It has also become evident that officeholders' policy preferences systematically vary from public opinion on a number of dimensions which less directly involve their personal interests; I'd say this is probably due to their having so much more to do with each other than with the public, that they amount to an identifiable and somewhat insular society within society.

2. Officeholders may safely act on those different opinions and interests in the case of judicial appointments, because there is a great asymmetry between the information concerning nominees available to the officeholders and to the public, and a sufficient delay between nomination/confirmation and the public becoming aware that they have been screwed over, to prevent accountability.

The result is that we should expect judicially mediated 'change' to the the Constitution to track and converge on the preferences of officeholders, not the public.

In the case of formal amendment, the information asymmetry is limited due to the fact that amendments must be formally drafted and widely disseminated. And the amendment process takes long enough after this dissemination for the public to rally against undesirable amendments, and block them.

So, while even the formal amendment process will be somewhat skewed away from public opinion in the direction of the preferences of the political class, it will be much LESS skewed in that direction than informal 'amendment'.

Informal 'amendment' has replaced formal amendment via Article V procedures precisely because it enables the political class to wrest control of the Constitution from the public, and vest it entirely in their own hands. Far from being democratically legitimate, informal amendment is nothing more than a procedure for circumventing democratic constraints on the political class.
 

A question: on Balkin's theory, if I get elected President and say, you know what, I'm a Republican, I campaigned on a pro-life platform, but I want my nomination process to be as depoliticized as possible, so I'll just, say, pick a name out of a hat filled with the names of the 10 best and brightest appellate judges in the land - names provided to me by a bipartisan group of law professors - am I doing some kind of disservice to democracy? Do I owe it to the people to nominate a judge who reflects my policy preferences? And similarly, if I nominate a Scalia, does the Democratic Senate have an obligation to reject him? Often you hear critics of the process saying, in effect, "confirm the really qualified nominees regardless of ideology, it's a travesty to vote against someone like John Roberts," but is that wrong? If the Court's legitimacy is derived from its being reflective of how people vote, I think it would have to be.
 

A couple more points:

1. As the fate of the 27th amendment demonstrates, under the current informal 'amendment' process, the political class not only has seized the power to amend, it has also seized the power to block amendments which somehow DO make it through the formal process, by having the courts render them moot via interpretation. Pretty hard to explain, if you think informal 'amendment' is driven by public, rather than elite, opinion.

2. One downside of the formal amendment process is that the political class still retain the power to block popular amendments, as demonstrated by the fate of term limits. So actual amendment only tracks public opinion to the extent that the political class agrees with public opinion. This could be considered one of the checks on power in the Constitution, but I personally think it's a tad TOO effective in that regard, and support amending Article V so that the states can cut Congress entirely out of the loop, by amendments taking effect when ratified with identical language by the requisite number of states no matter where they originate from. Getting this past Congress would probably require a convention, of course.
 

By the way, when the last few necessary states come on board to call for a convention, anyone want to bet that Congress ignores the call, and the courts declare the matter non-judicable? Game, set, and match: The informal process installed, and the formal process killed.
 

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