Federalist Society Student Symposium '08: "the people and the courts"

I mentioned last week that the Federalist Society is now putting video and audio of its events up on its website quite expeditiously, so I'm not going to serve up coverage of this year's student symposium in the level of detail I offered for last year's. Still, it was a fascinating event, and I do have a few broad-brush thoughts and observations, leavened by some photographs of the Michigan Law School.

Friday's panels focussed on "judicial interference with community values" (a basic assumption of federalism being, as one panelist observed, the thought that diverse answers to some policy questions are generally acceptable, so the question is when and to what extent should judges impose homogeneous answers across an entire state or the entire nation) and methods of selecting state judges. <!--Prof. Rick Garnett makes some good points - that our federalism necessarily entails national values at least sometimes trumping local diversity, but that nevertheless, courts shouldn't be in the position of searching for rights requiring judicial vindication. He thinks that his one-time boss, Chief Justice Rehnquist, had the approach right, and suggests that that approach is to be found in the space between the Lopez opinion and Rehnquist's dissent in Texas v. Johnson. (I'm not sure from my notes whether this was something Rick said for himself, of Rehnquist, or if it's just my marginal characterization of either of the above, but I have a note that a "theme here is that [maintenance of] structures of government shouldn't be left to those who have incentives to bend them.") That all fits in quite nicely with themes I've sounded often, particularly the view that the "structural" Constitution is at least equally important as what one might think of as the "rights" Constitution.--> The only thing I'm going to make particular note of in regard to the first panel actually comes from the Q&A, and relates to Prof. Rick Hills' distaste for Article V. Article V is broken to the point of being vestigial, Hills thinks, because it makes it very difficult to amend the Constitution. He says that only Yugoslavia's constitution was any harder to amend, and would prefer a model where Congress can change the Constitution by two-thirds vote of each house. That's an appalling suggestion, I think, but setting that aside, the more risible point here is that Article V is "broken." Why would we think that? I guess we're to infer that Article V doesn't work properly because the Constitution has only been infrequently amended, or because neither side in, say, the abortion controversy have been able to decisively settle the issue with an amendment. To my mind, that's evidence that Article V is working terrifically well, however, and doing what it's designed to do: preventing the ratification of amendments that don't rest on a consensus enjoying genuinely broad-based and sustained support among the American people. These are issues which will be the subject of future writing here; Hills is presently a guest at Prawfsblawg, so perhaps he will develop the theme during his time there.

On the second panel, former Texas Chief Justice Tom Phillips argued generally in favor of what's dubbed the "merit" system, while Michigan Chief Justice Clifford Taylor argued generally in favor of electing judges. Phillips pointed out that while we've settled on a broad national consensus on methods of selecting the political branches, there's a number of competing models for selecting judges, and offered a useful, if potted, history of selection processes. At the time of the founding, appointment was the prevailing model; the idea of elections came in when the Jacksonians arrived and wanted to elect every position more consequential than dog catcher. In the progressive era, non-partisan judicial elections became popular, and mid-century, Missouri hit on the idea of the hybrid "merit" system, wherein a panel gives the governor a list of recommendations, the governor picks one, and that person is thereafter subject to "retention" elections. (Readers may recall that this was the system that deep-sixed efforts to cast doubt on Rudy Giuliani's judicial appointments as mayor.) This model became popular, and several state constitutional conventions adopted it. But then Roe was decided, and the state constitutional convention, for all practical purposes (and for obvious reasons) bit the dust. Most states are, therefore, now wherever they happened to be when Roe plunged matters into the deep freeze, even though no one is really happy with the status quo.

I've expressed concerns about this subject before, and the difficulty I have with this panel is that both panelists very effectively showed that the system that their co-panelist advanced is irreparably flawed in significant ways. Worse yet, the alternative federal model isn't without its warts either (as Phillips pointed out, for one thing, federal judges were given life tenure in an age when people lived for shorter spans). Phillips avers that electing judges is destabilizing and delegitimizing; worse yet, partisan elections tends to encourage judges to see themselves as having constituents, of having some kind of mandate independent of the legislature, which encourages exactly the sort of judicial activism we should strive to avoid. But on the other hand, as Taylor points out, selection is intractably political. The idea of a "merit" system is incoherent without a consensus on what constitutes "merit," which is precisely what we don't have. Although this distinction is at quite a high altitude and ignores a lot of crossover and subtleties, there's a basic divide in America, that roughly tracks party lines, between what I'm going to echo Justice Markman (see infra) and call "interpretivists," on the one hand, and instrumentalists on the other. Merit as a measure of competence doesn't exist independently of an understanding of what task one ought to be competent at; the merit system, Taylor says, doesn't remove politics from the selection process, it just obscures a question that is, at this point in time, political. There's also the question of who selects the selectors; the reason the bar likes the merit system is at least in part because no one likes the good old boy network more than do good old boys. I am left with the feeling that this is a problem with no satisfactory answer.

Monday's first panel (moderated by Michigan Justice Young, who I've previously suggested for a higher perch) was notionally centered on popular response to unpopular decisions, paradigmatically Kelo v. New London, but ranged somewhat more broadly. Prof. Sherman Clark and Ward Connerly both focussed on referenda, popular initiatives and comparable devices of "direct" democracy. Clark argues, quite convincingly, that even if we stipulate that the goal of democracy is to translate the will of the people into public policy with minimal transaction costs, the easy assumption that such direct democracy devices more accurately measure the desires of the people is flawed. In a world where no candidate is ever likely to perfectly map to a voter's preferences, representative democracy allows us to measure strength and depth of feeling via revealed preference: we must choose imperfect candidates, and rational actors will be influenced by not simply by how many policy boxes they can tick off for a candidate, but by how important the candidate's position on issue X is. I'm oversimplifying quite a lot for brevity, and Clark's presentation will be well-worth checking out when the video becomes available. Related to this, Prof. Marci Hamilton points out that our hybrid system is based around a fear of simple and simplified majorities, and defends "legislative sausage" - the legislative process, of its nature, tends to produce better compromises, she argues, which is probably why no one likes it. <!--(Hamilton also points out - diverting us on-topic for a while - that whether or not Kelo was correct as a matter of doctrine, it at least had the healthy effect of floodlighting the issue and getting the public to think about the state of doctrine and the propriety of eminent domain.)--> Clark concedes that there are special areas of legislative incompetence where initiatives may be appropriate, such as term limits; his deep end is, roughly-speaking, Connerly's shallow end. Connerly thinks there's a few more areas than just particular legislative incompetence; he implicitly disagrees with Clark, arguing that the principal use of the initiative is to allow a majority on a given issue to speak clearly, directly and specifically to an issue where the legislative process is not producing that desired result (presumably as a result of precisely the trade-offs and prioritization that Clark spoke about).

This is a good moment to note that we had a handful of protesters; they made some noise outside before the first panel and came inside to escape the snow and heckle Connerly a little. He aroused vitriol in some quarters, it seems, with his involvement in an initiative that nullified the Grutter case within Michigan, forbidding affirmative action in the University of Michigan system. The protesters' thesis appears to be that because (a) the absence of racial preferences is discrimination (I must admit to being utterly baffled by the idea, advanced by one of the protesters during the Q&A section, that standardized tests discriminate against minorities), and (b) black and latino students can't succeed on their own merits, therefore (c) Connerly is evil. I don't usually ask questions at these events, but for once, I had one in mind, and managed to get to the microphone quickly enough to only have two of the protesters ahead of me in the line. Despite my concerns about following some noisy hectoring, by the time my turn arrived, it had become an easy gig: virtually anything I could have asked was going to be a welcome temperature reduction. I prefaced my question by saying that "my question... is not about affirmative action in Michigan," prompting what I would swear was audible relief in the room.

A lunchtime breakout session with Profs. Rick Garnett, Tom Merrill, and Joan Larsen covered ground covered last year by Volokh Conspiracy Profs. Orin Kerr and Randy Barnett: guidance for students considering careers as lawprofs. Much of this echoed Kerr's and Barnett's advice (write, write, write), with the additional observation that it's important to avoid developing a lawyer's mindset vs. a legal scholar's mindset. That is, form the habit of mind that thinks of law as an area of inquiry and study rather than a toolbox with which to solve clients' problems. Still, the main thing I'll take away from this was Merrill's observation that among the bread-and-butter courses that are finding themselves short of professors is the federal courts course - which kills me, because I'm entirely unqualified to apply, but there's not any other course I'd rather teach (which, by the way, includes conlaw).

The day's penultimate panel was slated to explore "the originalist judge and the media," featuring Michigan Justice Markman, NBC's Pete Williams, and a rather surprised Prof. Richard Primus (as it turns out, I was reading an article of his, Bolling Alone, in the research for the forthcoming second part of my essay on Bolling v. Sharpe, originalism and precedent (part one is here; part two is coming, I promise)). The essence of Markman's position is that the originalist judge, the textualist judge, the legalist or formalist judge, whatever label you want to use (he prefers "interpretivist") starts at a disadvantage with the media. He echoes the point that provokes the press when Our Hero makes it, that the media is really interested primarily in who won - did the good guy win, did the bad guy win - and is therefore very results oriented. But the interpretivist judge is all about process, not result, while the instrumentalist judge is far more likely to give the media what they want: the good guy wins, the underdog beats The Man - we all remember the Chief's confirmation hearings, right, where Dick Durbin asked Roberts if he would rule for the little guy, and listened to the answer - that when the law says the little guy wins, the little guy wins, and when the law says the big guy wins, the big guy wins - with a look on his face akin to a PETA activist visiting a slaughterhouse. Markman just assumes away conservative judicial activism (see, e.g., Smith, DISROBED: THE NEW BATTLE PLAN TO BREAK THE LEFT'S STRANGLEHOLD ON THE COURTS (2006)), which the media certainly doesn't like, and equally, the media (and the defense bar) love interpretivist judges when the case is Booker, for example, or Crawford, or the Texas flag burning case, Johnson v. Texas - cases where interpretivism produces "liberal" results, which it sometimes does. Markman's not wrong, it's just that the domain in which he's correct is more cabined than he suggested. Pete Williams had a nice little point - this rings bells for me, I just can't think which article brought up a similar point - that some of what's perceived as political bias is actually regional bias - people who grew up in New York just have no comprehension of the mindset on an issue like guns or water management of people from the interior west and southwest.

The final panel was slugged "Tradition and the People's Constitution"; we get William Eskridge (think Bill Douglas built for speed), Tom Merrill, Reva Siegel and Keith Whittington, sufficient star power confirm that even in the Federalist Society, the thesis of Queen drummer Roger Taylor that you close the show leaving the audience dazzled and wanting more holds sway. Just a couple of things to remark on here. Eskridge poses three questions that probe the problem of a reliance on "tradition" in the abstract: what counts as tradition, at what level of generality are traditions to be understood, and how does tradition evolve, which of course it does do (Eskridge cites Burke, but I'd think Oakeshott is closer to the mark). As to the second point, Parents Involved, he suggests, featured two competing traditions defined at a very, very high level of generality: the color blindness of equal protection, and racial integration. His point about precedent as tradition makes me think back to the discussion of Justice Scalia, precedent and tradition in part II of this post, but his observation that traditions changed between Bowers and Lawrence, I think, pushes it a little: remember the Apprendi oral argument wherein Scalia scoffed a little at the idea that a practice a few tens of years old was much of a tradition? (Speaking of Scalia and precedent, Eskridge has a handy anecdote: he routinely takes students to visit the Supreme Court, and one group asked Scalia if he'd overrule Griswold v. Connecticut? "Nah.")

Lastly, for sake of symmetry, a point that Merrill makes handily brings us back to the day's first panel. In the Clark-Connerly divide, Merrill comes down somewhat closer to Connerly (as I read him, at least). He suggests that referenda are certainly good for deciding eminent domain questions (what do we think of the Lost Liberty Hotel?) may be a useful tool when the issue to be decided has defied traditional structural processes for its resolution. But here as then, the problem that I have with such a conception is that everyone thinks their issue is that exceptional issue that is so desperately important (and their answer totally correct) as to merit short-circuiting the usual process. For the much same reason that I think Rick Hills is dead wrong about Article V (see above), I think this conception is problematic: that a legislature hasn't acted on an issue (still less legislated a certain way that you'd prefer does not mean that the issue has defied resolution through the traditional structures. It means that those processes have produced a result at variance with one interest group's conception of ideal public policy - which is exactly what legislatures are supposed to do. So if the criterion for whether or not an issue ought to be dealt with external to the established processes for deciding public policy - by referenda or what have you - then every issue will be deemed to meet that threshold by one group or another. The exception will swallow the rule - and the republic.

(A few more photos from the event here.)

Post facto:
Rick Hills on Article V (3/13/08)
Shift or correction? (4/2/08)
Video from the Federalist Society Student Symposium (4/22/08)