I think ideology might as well be discussed.  We all know, whether we admit it or not, that ideology is considered in both the nomination and the consideration.  What the Senate should not do is filibuster nominees.

The Senate should vote for or against the individual and, if the individual decides issues contrary to what a majority of the Congress likes, they should impeach the judge.  It's simplistic, but it is also, in my opinion, how the system was designed.

Erick Erickson
Sell & Melton, LLP
Macon, Georgia

-----Original Message-----
From:	Scott J. Rafferty [mailto:rafferty@alumni.princeton.edu]
Sent:	Mon 9/22/2003 3:22 PM
To:	'Rick Hasen'; election-law@majordomo.lls.edu
Cc:	
Subject:	Judicial Ideology and Recall Litigation - Where's the Connection?

Rick Hasen wrote:
The recall, Bush v. Gore, and Miguel Estrada What do these three topics
have in common? The connection between the first to is obvious to
readers of this blog, but what about the third? Miguel Estrada, of
course, is a Washington lawyer who recently withdrew his nomination for
a judgeship on the United States Court of Appeals for the D.C. Circuit.
He did so in the face of a relentless filibuster by Democrats. Some of
those who opposed the filibuster said that it was unfair, and among
those who said that, some argued that the ideology of the judge should
be irrelevant to the decision whether or not to confirm the judge---the
only question should be one of judicial competence, at least on the
Court of Appeals.
The recall litigation in the Ninth Circuit should end any serious
discussion of the irrelevance of ideology to the confirmation process.
How is it that most knowlelgeable observers were able to handicap the
chances that the three judge panel would reverse the district court in
the punch card recall suit? How is it that knowledgeable observers now
predict that the three judge court decision will be overturned? Those
knowledgeable observers know the ideological leanings of the appellate
judges and therefore can extrapolate about how sympathetic these judges
are likely to be to the equal protection claims of voters using punch
cards, compared to state interests in a speedy recall election. Of
course ideology matters, and of course it should be relevant in
confirmation decisions of intermediate appellate court judges.
I'm confused about what you are saying here, Rick.  Your conclusion that
"of course ideology matters" suggests that the current debate about the
proper standards for judicial nominations and confirmation is somehow
trivial.  You also seem to be impugning the objectivity and/or fairness
of the Ninth Circuit en banc panel before the fact.  I am not sure that
either conclusion is well supported.
Although I favor the panel's decision, it does raise some significant
issues that any reviewing judge - "ideological" or not - would have to
confront.  Perhaps it would be prudent to wait until the opinion, or at
least the argument, before concluding that the decision process was
driven by "ideology" rather that "competent" adjudication.  Certainly,
the mere fact that newspapers, which may or may not be "knowledgeable,"
are predicting an outcome is not sufficient to brand any or all of the
judges on the en banc panel as "ideologues."
A further problem with your logic is the assumption that the decision
*only* involves weighing equal protection claims against a purported
state interest in a speedy recall.  There are significant procedural
issues about the role of a federal court in issuing injunctions, as well
as the standard of review used by the panel, that are completely
*neutral* as to ideology.  It is entirely possible that one or more of
the judges will decide the case on principled grounds that will
contravene not only his personal political inclinations, but also his
substantive views on the equal protection clause.  The questions at
argument - and the opinion - may shed light on whether these particular
judges articulate and act upon principle or whether they are slaves to
"ideologies."
In the case of Miguel Estrada, there was overwhelming evidence that he
allowed his political ideology to dictate both his treatment of parties
and the decisions he issued.   His nomination was a threat both to the
ideological "balance" of the judiciary and the public's perception that
the judiciary is capable of enforcing the law according to a coherent
judicial framework that respects legislative and constitutional
processes.  The debate over the proper standards for confirmation is
complex, particularly when presidents from one party nominate
significant numbers of partisans over an extended period of time and
Senators perceive a cumulative imbalance.  It would certainly be tragic
if every Senator voted on every judicial nominated based on his or her
presumed ideology, constrained only by the political realities of the
confirmation process.  However, where individual nominees manifest
ideologies that interfere with judicial objectivity, or where the
overall make-up of the judiciary is out-of-step with Congress (as it was
during the New Deal), the ideology of judicial nominees will be a
"relevant" factor in the confirmation process.
I don't think the outcome of the ACLU case will provide any great
epiphanies in this long-standing debate.