A Shout Out from Nomination Nation
A friend directs me to this post over at Nomination Nation, which discusses mine and Senor Baude's discussion on allowing the Supreme Court to appoint lower court justices.
I think the strongest argument against the idea is the basic-conservatism argument: even if the advise-and-consent rule isn't strictly necessary for lower court judges, we've always done it that way, our system works fairly well, there's no reason to make radical changes just because we can, especially since those changes can lead to unpredictable, and possibly quite negative, outcomes.
And yet, while I'm a conservative guy and thus inclined to buy into the "don't rock the historical boat" argument, I'm not sure that it's necessarily dispositive here. I mean: I've no doubt that adopting the appointments scheme outlined in the initial post would represent a radical change in the nature of the federal judiciary. But maybe that's what we want. We may want a judiciary that's more professionalized, that's even more independent from the political branches, that's more (gasp! I can't believe I'm arguing this) European. I'm not saying that we do. We probably actually don't. But if we did, we could do this, probably without much constitutional difficulty, regardless of whether or not it would have pleased any of the Founding Fathers.
I'm not necessarily arguing that the proposed new system is a good idea. I think in many ways we're better off with the bizarro system we have now. I'm just exploring new ideas and yadda-yadda-yadda, y'know, typical law school crap.
Sorry for the abrupt ending. It's just I've been interviewing, and my verbosity store is running dangerously low. Maybe more better later.
I think the strongest argument against the idea is the basic-conservatism argument: even if the advise-and-consent rule isn't strictly necessary for lower court judges, we've always done it that way, our system works fairly well, there's no reason to make radical changes just because we can, especially since those changes can lead to unpredictable, and possibly quite negative, outcomes.
And yet, while I'm a conservative guy and thus inclined to buy into the "don't rock the historical boat" argument, I'm not sure that it's necessarily dispositive here. I mean: I've no doubt that adopting the appointments scheme outlined in the initial post would represent a radical change in the nature of the federal judiciary. But maybe that's what we want. We may want a judiciary that's more professionalized, that's even more independent from the political branches, that's more (gasp! I can't believe I'm arguing this) European. I'm not saying that we do. We probably actually don't. But if we did, we could do this, probably without much constitutional difficulty, regardless of whether or not it would have pleased any of the Founding Fathers.
I'm not necessarily arguing that the proposed new system is a good idea. I think in many ways we're better off with the bizarro system we have now. I'm just exploring new ideas and yadda-yadda-yadda, y'know, typical law school crap.
Sorry for the abrupt ending. It's just I've been interviewing, and my verbosity store is running dangerously low. Maybe more better later.
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