an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Watching (or reading about) the current confirmation hearings is pretty depressing if one takes them as moderately serious exercises in talking about "the law." Senator Kyl's effort to get Judge Sotomayor to say that she would recuse herself were a case raising the issue of Second Amendment incorporation to come before the Court (other than the very case in which she sat as a circuit court judge, where -- she said quite correctly -- a statute purported to require recusal) was particularly inept. (Two qualifications: I heard it on the radio, and perhaps it wasn't Senator Kyl; and Supreme Court justices have regularly taken the position that statutory rules applicable to lower court judges are not legally binding on them, although they of course say that they take Congress's expression of its will seriously.) My law professor's instinct screamed out: "What if she'd interpreted a statute five years ago, and now another circuit has created a circuit split on the question? Is she supposed to recuse herself if the Court grants review to resolve the split? How is that different from the 'problem' Senator Kyl's worried about?" But the fault could be distributed pretty broadly.
Of course, the hearings are not really efforts to talk seriously about the law, and legal commentators probably have little to offer. My guess is that anthropologists who study rituals would be better at informing us about what's happening at any moment. So, for example, we don't really think that it's even appropriate to ask whether a statement made during a ritual is "accurate" or "true." We ask, "What's the point of saying this rather than that at this particular point in the ritual?" We're interested in what the statement does rather than what it means (in a cognitive sense). Sometimes the answers are obvious: "The point of saying this is to get the Senator some air time on the local TV station."
Or, more generally, "The point of saying this is to get or keep a job."
Maybe I'm too puritanical, but I think it would be better for our polity if we redesigned the ritual -- which is now, for my taste, too much like a degradation ceremony for the nominee. I'd do away with the personal interview "candidates" for appointment have with the President and the courtesy calls they make with the Senators. I find it impossible to believe that anything is revealed in these aspects of the modern ritual that has any bearing on a person's competence as a judge. ("Plays well with others," perhaps, in a quite artificial setting -- but sometimes a good judge will deliberately not play well with others.) I'd even do away with the personal appearance of the nominee before the committee to the extent that that part of the ritual purports to be an examination of the nominee's views about the law.
When Henry IV said of a different ritual (again, to get a job), "Paris is worth a mass," I don't think we take that as a demonstration of the kind of integrity we want in judges. I don't fault anyone for doing what today's rituals demand. I just wish that we could figure out some other way to do whatever it is that this particular ritual does.