Stephen A. Douglas's all-important question about judicial legitimacy

What follows should be read in the context of Richard Primus’s and Keith Whittington’s absolutely superb postings on the issues raised by the proposal to pack the federal judiciary with Trump nominees chosen, de facto, by a combination of the Federalist Society (Leonard Leo) and the Heritage Foundation.  I agree that this exemplifies “constitutional hardball.”  There’s no doubt about the formal power of Congress to adopt the proposal, but there should be as little doubt that its adoption would fray our “mystic bonds of Union” even further. 

What I find particularly depressing about the defense offered of the Calabresi-Hirji proposal, helpfully linked in Richard’s post, is its last paragraph.  I have known and liked Steve Calabresi for many years.  He is an honorable man, as illustrated by his vehement opposition to the charlatan Donald Trump in the last election.  On another matter, he is also part of a wide-ranging group of academics who agree that life tenure for Supreme Court justices is a mistake and should be modified; we disagree on whether this requires a constitutional amendment (his position) or could be done through carefully crafted legislation (my view).  Many, though not all, of the arguments would apply to life tenure for "inferior judges," who, as a result of the shrinking Supreme Court docket, are in fact ever more important in the actual governance of the US.  In any event, he is a careful scholar, even if one disagrees with many of his arguments (as I do, for example, with regard to the "unitary executive").  Thus it is especially dispiriting to read the argument set out in his conclusion:

Voters who told pollsters in 2016 that they cared more about judicial selection broke heavily in favor of Donald Trump over Hillary Clinton.  Donald Trump ad a popular mandate to pick Justice Scalia’s successor and to pick a whole lot of other lower court judges like him.  Make no mistake about it Professor Primus.  The American people are against you on judicial selection.

Make no mistake:  This is the argument of a propagandist, not a careful scholar.  This is also true, incidentally, of his argument that the fact that Republicans have won roughly 60% of the presidential elections--though not, of course, elections to the Senate--over the last half-century means they are entitled to have 60% of appointments to the federal judiciary.  Begin with the obvious point that Donald Trump did not come close to carrying even a plurality of “the American people.”  All one can say, arguendo, is that people who rated judicial selection as their primary criterion broke in favor of Trump.  One suspects this is a proxy for Evangelical Christians, given Donald Trump's patent flouting of all of the self-professed "values" held by such Christians--see, e.g., Michael Gerson's invaluable columns in the Washington Post on this point--though, interestingly enough, not for the 2016 version of Steve Calabresi and other principled conservatives like Ilya Somin and Jonathan Adler (and many others) who were willing to subordinate their desire for compatible appointments to the recognition that Donald Trump was manifestly unfit to serve as President of the United States.   But this is not to say that those who voted for Clinton were indifferent.  Most (though not all) simply had more genuine respect for their candidate than many Trump voters had for their champion.  Clinton supporters had higher priorities, such as medical care, demonstrated knowledge about the world, and overall competence.  In any event, the Calabresi-Hirji argument is basically founded in Jacobin majoritarianism centered on presidential power, a position not often linked with the professed views of the Federalist Society that Calabresi helped to found and which proudly uses a portrait of James Madison in its logo.  

Their argument, if taken to its limit, suggests that we should amend the national constitution to bring it more in alignment with most state constitutions, i.e., to have judges who are accountable to the electorate, either at the appointment stage or via retention elections.  I actually think there is something to be said for that, in spite of obvious problems, inasmuch as Calabresi and Hirji make it glaringly obvious as an empirical matter, and seem to defend as a normative one, that appointment to the contemporary federal judiciary is all about political ideology.  If that’s the case, why not turn the choice over to the electorate, where, at the very least--if one were to select circuit and district judges on the basis of geographical votes, for example--one would be unlikely to get the winner-take-all capture of the federal judiciary that Calabresi and Hirji are in fact advocating?     

But that brings me to my second point, which is really more important.  One of the things that is different about the constitutional law casebook that I have the honor to co-edit, in its present version with Jack, Akhil Amar, and Riva Siegel (though I remain eternally grateful to Paul Brest for his original vision and kindness in asking me to join him in the second edition), is that it includes hefty excerpts from the Lincoln-Douglas debates.  That signifies our belief that a lot of important constitutional argument takes place outside the courts.  Especially important, I believe, is Senator Douglas’s statement on July 17, 1858, in Springfield, Illinois, as part of their continuing debate about the legitimacy and precedential effect of Dred Scott.  Taney’s opinion in effect declared unconstitutional the primary plank of the Republican platform, i.e., opposition to extending slavery into the territories. Congress had no such power.  Only would-be states, in drafting their own constitutions prior to admission to the Union, could abolish slavery.  Until then, slaveowners had a constitutional right to transport their legal property from their former states of residence to the territories, which were, in effect, held in trust for all citizens of the United States with regard to conditions of settlement.  As Mark Graber has ably argued in Dred Scott and the Problem of Constitutional Evil, there is much to be said, as a strictly legal matter, for this position, at least once one accepts, as I do, Garrison's basic point about the 1787 Constitution's being a "Covenant with Death and an Agreement with Hell."  It is so much easier to denounce Taney and his colleagues as what Jack and I have termed "judges on a rampage" than to acknowledge the possibility that pacts with the Devil may sometimes have to be honored, at least by "originalists" and other legal positivists.    

Lincoln did not recognize the authority of the decision as "the law of the land" rather than the specific "law of the case," and he pledged to adhere to the Republican platform by voting for legislation that would indeed bar settlement of the territories by slave-owners.  An obvious problem, though, was that even in the unlikely event that it passed and was signed by the President, an unreformed Court would clearly strike it down as unconstitutional.  So what had to be done was to change the compsition of the Court itself.  This brought Douglas’s riposte:

Mr. Lincoln intimates that there is another mode by which he can reverse the Dred Scott decision. How is that? Why, he is going to appeal to the people to elect a President who will appoint judges who will reverse the Dred Scott decision. Well, let us see how that is going to be done.…[W]hy, the Republican President is to call up the candidates and catechize them, and ask them, “How will you decide this case if I appoint you judge?” [Shouts of laughter.]…Suppose you get a Supreme Court composed of such judges, who have been appointed by a partisan President upon their giving pledges how they would decide a case before it arise, what confidence would you have in such a court? [“None, none.”]…It is a proposition to make that court the corrupt, unscrupulous tool of a political party. But Mr. Lincoln cannot conscientiously submit, he thinks, to the decision of a court composed of a majority of Democrats. If he cannot, how can he expect us to have confidence in a court composed of a majority of Republicans, selected for the purpose of deciding against the Democracy, and in favor of the Republicans? [Cheers.] The very proposition carries with it the demoralization and degradation destructive of the judicial department of the federal government.  (emphasis added)

I have, several times, used this as the basis for final exam questions.  I.e., to what extent is it true that “We the People” will (or should) accept judicial authority if and only if we see the judiciary as something else than the arm of our political opponents?  There may in fact be something naïve about this view.  As Keith points out, all political scientists, of whom I am one, views judicial appointments as intimately linked to the political realities of the appointing president and confirming Senate.  This indeed goes back (at least) to the Midnight Judges and John Marshall’s appointment to stifle the consequences of a Jeffersonian presidency.  Most of us know that there is gambling going on in Casablanca.  I am not a strong devotee of the "law-politics" distinction.  Yet most of us do seem to adhere to a view that judicial opinions, to be genuinely binding, must be something more than "mere" politics.  We have also seemed, at least most of the time, to grant legitimacy to the Court, perhaps because, as a matter of fact, it was usually the case that there were some significant overlaps between Democratic and Republican nominees.  Just consider the fact that Woodrow Wilson appointed both Brandeis and McReynolds, or Harding/Coolidge appointed both Taft and Harlan Stone.  And Eisenhower apponted both Harlan and Warren.  Those days are basically gone, and we have to face more than ever the implications of Douglas’s question.  Why exactly should Democrats continue to place confidence in a Court where the key seat is occupied as the result of political theft, even if, as I agree, what the Republicans did was constitutional?  The obverse question, of course, is whether Roy Moore's (and Neil Gorsuch's?) constituency would place any confidence in a court in which Merrick Garland would have provided the fifth vote for non-conservative outcomes.  Given the extremity of the language in the original Calabrese-Hirji proposal, it appears that they reject the legitimacy of any and all "Obama judiciary" decisions.  Perhaps they view Roy Moore's legal views as a bit extreme, but there may be more of a connection than they would like to admit.  (And, to be perfectly candid, I certainly have argued over the years that there is no duty to give precedential affect to decisions that I view as "clearly mistaken."  This is just what the "judicial protestantism" that I have defended entails.)  

We are necessarily talking about legitimacy rather than legality.  That’s where the “small-c Constitution” comes in.  As we learn in childhood, the complaint “that’s not fair” often applies to the assertion of perfectly “legal” powers by parents, older siblings, or wooden teachers.  “Justice as fairness” was the heart of John Rawls’s political theory (for all of its acknowledged problems).  We are moving toward a world where “fairness” is irrelevant, where “triumph of the political will” increasingly reigns supreme.  That should frighten all of us.  It apparently does not frighten Professor Calabresi, which surprises me.  Query:  Would he prefer Roy Moore's election, if that assured the passage of his proposal, or would he in fact prefer the election of Doug Jones, even if, by simulation, if assured the proposal's defeat?  That is, exactly how important is capture of the federal judiciary?  For many Evangelicals, it was enough to justify voting for a manifestly pagan incompetent.  That wasn't Professor Calabresi's position last year.  I hope that remains the case now.

            My own view is that the American government, more and more, is at least as illegitimate as was the British government castigated by the revolutionaries (or, more accurately, secessionisits) of 1776.  I am at the apocalyptic end of the spectrum inasmuch as I do believe that we have drifted into a political-psychological state that often presages civil war.  In my own case, I find secession and the breakup of the Union far more palatable.  But that is the subject for other discussions and other postings.