Arguing with Armando about Bush v. Gore and Samuel Alito.

I try to stay out of arguments about Bush v. Gore. One of my earliests posts on this blog agonizes over the impossibility of teaching it to law students:

Bush v. Gore is important, but I find it hard to believe that people are willing to invest the time to understand the federal and state statutes and the federal and state constitutional law provisions needed to grasp the legal issues in the case. Even if they do spend the time, I think their intake of information is affected at every step by their preexisting mindset about what the Supreme Court did (e.g., stole the election, saved us from an overreaching state court). But most likely, they won't spend the time, because they know very well what happened. Where did that knowledge come from?

I remember the night the decision came down, watching reporters on TV trying to read and understand the opinion in front of live cameras. That seemed at the time to be antithetical to a real process of understanding a piece of writing, but in retrospect I think nearly everyone reached their understanding at that point. Perhaps that is what human understanding is, and the rest is filling in the details.

It is hopeless and crucial and absurd to teach Bush v. Gore.

It's much worse to try to argue about Bush v. Gore in the blogosphere, especially when you have to talk with very partisan folks who know damn well what they think and write for thoroughly political purposes. So what am I supposed to do when the DailyKos, with its 700,000+ visitors a day starts talking about something I wrote about Bush v. Gore? Armando takes a passage from an article I wrote years ago, which I happened to have posted in the comments section of this post the other day. He refers to the passage as a "pile of manure" and doggedly states his opinions without engaging with the intellectual substance of what I'd said.

Naturally, he doesn't read the whole article that precedes the conclusion, which parses all the legal texts. I don't have a link for it. You'd have to go into LEXIS to read it. Look for: Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). I don't blame him for not reading the whole thing, only for writing as if there wasn't an entire detailed article supporting the conclusion he's satisfied to call "manure." He writes that I do "not even bother to defend [Bush v. Gore] on legal grounds." But I do! Read the article. I just can't do it in short form on the blog.

Essentially, Armando does what I said in that old post that everyone does. My article conclusion ends with the line: "[T]hose who would criticize ought to see how the judges who voted for the outcome the critics liked were all doing something that they would have found a way to criticize if they had felt so motivated." But who can imagine Armando undertaking that particular thought exercise? In fact, I don't expect anyone to do that, because it's an unbelievable pain to work through the materials even without trying to adopt an experimental alternative perspective. And Armando's thing is to be a hardcore partisan, so why would he ever bother to spend his time like that?

Well, am I supposed to respond to him? On this one, it's monumentally easy to see in advance that arguing about what happened in Bush v. Gore is a mug's game.

But Armando uses my text to make an argument about the Alito nomination. I will talk about that. Looking at the way I wrote about Bush v. Gore, he asks:

[D]oes not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?

No, I'm not a "legal realist." Legal Realism, like its close companion Critical Legal Studies, goes too far in portraying judges as acting in service of their own political and policy preferences. I simply recognize that the answers in many cases are not predetermined by text and precedent and, therefore, the individual judge's background, beliefs, values, and tendencies will affect the decision. It really matters who decides. I would guess even originalists like Justice Scalia and Thomas would admit that.

So, of course, we all ought to be concerned about what the mind of Alito is really like. Of course, it's not enough to say he's well educated and demonstrably proficient at crafting opinions from legal materials. So what's my answer to Armando's questions about how Alito's opponents should proceed?

It turns out I've already answered. Look at this post from last week, responding to that 1985 job application in which Alito professed a set of conservative beliefs:

Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.

With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.

First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.

Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.

Alito opponents should take the rule of law seriously and respect the institution of the courts. These are resources we all rely on. Trashing them is counterproductive. Challenge Alito in a way that also expresses a sound theory of constitutional interpretation. Work on a way to convince ordinary people that approaches other than originalism deserve respect. Help people care and believe in the individual rights you want courts to protect. Playing from the Legal Realism side, from an assumption that law is a kind of politics, empowers your opponents to say -- as they've been saying ad nauseam -- that you only want judges who will legislate from the bench.