Mapping the Space of Judicial Attitudes Department
In several posts on Legal Theory Blog, I've proposed a two dimensional mapping of judicial attitudes. The first dimension is judicial philosophy (formalism versus realism) and the second dimension is political ideology (left versus right). Matthew Thomas writes with an interesting suggestion:I wonder if you've considered that since your graph is about judging, rather than about personality, it should be a triangle rather than a square.
Here is Matthew's diagram:
____Left_________________Right
______________________________
____\________________________/_Realist
_____\______________________/
______\____________________/
_______\__________________/
________\________________/
_________\______________/
__________\____________/
___________\__________/
____________\________/
_____________\______/
______________\____/
_______________\__/
________________\/_Formalist
Matthew continues:As you say, "formalists believe that judges with different political ideologies will converge on a fairly narrow band of legally correct outcomes". So a perfectly formalist left-wing judge and a perfectly formalist right-wing judge should be in exactly the same place on the graph. This works with the triangle, but doesn't work with the square.
Yes and No
If you accept that, then you reach the interesting conclusion that "formalist moderation" tends towards being tautological. (In your diagram, "the moderation zone will stretch out across the bottom"; in my diagram, there's just a smaller area in which to stretch.)
That could mean, perhaps, that a system where left-wingers and right-wingers compromise on moderates will tend to produce judges which are more formalist than *either* side would like. But as a New Zealander, I have no idea whether the empirical evidence in the USA would support that theory.
Yes, if perfect formalist juding were possible, then as judges grow more formalist, their decisions will converge on the same outcomes in the cases they decide. But, this convergence does not map onto a left/right political spectrum. The outcomes reached by formalist outcomes will be preferred by the left in some cases and the right in others. Moreover, the judges themselves wills still have political ideologies. If we assume that perfect formalism is not possible, i.e. that ideology will affect the decisions of judges who attempt to rely on formalist methodologies, then we would expect that even the most formalist judges with different political ideologies will reach different outcomes in different cases. So in the real world we would not expect complete convergence in outcomes.
posted by Lawrence Solum 8:20 AM
Brett Bellmore on Models of Judicial Selection
Brett writes:I think I see a problem with your model. (Or at least an alternative
theory.) The shape of the curves you've selected basically assume that both
parties positively value formalist judicial philosophy. So that a judge who
was a 100% formalist, and known to be such, would be a shoe in, barring
horse trading or retaliation.
So, if one side is nominating what they see to be a formalist judge,
and the other side reacts with extreme hostility, there's got to be a
difference in perception, right? And that's what you suggest.
Let's examine the contrary assumption: That one or both of the parties
actually believe a significant portion of their program to be strictly
speaking unconstitutional, and liable to be struck down by highly formalist
judges. So that they regard formalist judicial philosophy as a disqualifying
factor. In that case, that party's curve would actually be something like an
arc segment centered on the 100% realist and agreeable political ideology
corner of the graph.
In that case judicial deadlock isn't a result of conflicting perception, but
of shared perception and conflicting interests.
I might add that you could assume that the salency of judicial philosophy is
very low for lower court judges, due to their being highly bound by
precident, and subject to having their rulings overturned by realist higher
court judges. In this case the curve would be more vertical, and you'd get
some agreement on judges who were formalists and relatively neutral in
political philosophy.
I think Brett is entirely correct that Presidents and Senators can have varying attitudes towards formalism and realism. My model abstracted from this complication by assuming that the selectors themselves were concerned only with political ideology. If we assume that selectors themselves have preferences for formalism or realism, we would get a more complicated story. Moreover, there are really multiple players, President, Senate Majority, Senate Minority--and the two Senate players can be disaggregated into individual Senators. My simple story was designed to get at a core intuition--that in general, a President or Senator will find candidates who are more distant ideologically to be more acceptable if they are more formalist.
posted by Lawrence Solum 10:46 AM