And yet, we as a politico-legal community seem either surprised or else, depending on one's point of view, relieved that the judge would decide as he did. I have in mind here a quote from Randy Barnett, professor of law at Georgetown University. It went something like this: “All the insiders thought it was a slam dunk,” . . . “Maybe a slam dunk like weapons of mass destruction were a slam dunk.” The Times reporter similarly wrote that the many challenges to the law could "no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." This is clearly a theme of the ruling, as a different Times reporter similarly wrote that "the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.
This struck me then, and still strikes me now, as simply nonsensical. This is especially so in light of everything we know about Judge Hudson and his politics as well as the arguments he made. Frivolity -- or lack thereof -- is the order of the day. Jack Balkin has a terrific response to this push on the part of Barnett and others to legitimize the commerce clause argument at the heart of Judge Hudson's ruling.
But this still didn't quite get at what wasn't quite right about the case and our responses to it. And then this occurred to me. What if, instead of Judge Hudson, the judge in the case were none other than Judge Judge Dick Cheney, or, even worse, Judge Limbaugh or Judge Beck. It may be that our reactions would still be the same. It may be, that is, that congressional Republicans would feel emboldened by such a ruling and renew their attacks on the law all the same, and that political support for the law would still destabilize as a result of the ruling. Who knows.
I suspect as much. Irrespective of the identity of the judge, the reactions would not change one bit. For support, one need to look no further than the mother of all activist decisions, Bush v. Gore. This was a case where the law took a backseat to pragmatic considerations and the short term goals and ideologies of the justices. What we knew as a practical reality meant little in the real world. President Bush went on to govern as if nothing unseemly had happened, and we were told to move on and "get over it." The same would be true after a health care ruling striking down the law en toto, by a Judge Glenn Beck, even if every single law that had ruled on the question had upheld its constitutionality.
This must mean, in sum, that the confirmation process is really that powerful. A conclusion reached by a private citizen can be considered "frivolous," yet legitimate once the same conclusion is reached by the same person once confirmed by the Senate. Put more simply: the decision reached by Judge Hudson was considered frivolous a month ago, yet somehow is no longer frivolous because one federal judge, appointed by a Republican president and with strong ties to the Republican Party, placed it at the heart of his opinion.
The implications could not be clearer. The confirmation process is the end game, the place where legal revolutions are won and lost. This is why nominees need not be smart, or even qualified by whatever standard of one's choice. The nominee just needs to be part of the right team. I don't know much about Judge Hudson, but I know one thing: he is clearly playing for the team that put him in the game.
Consider in this vein today's latest plea by the editors of the New York Times. The crux of their critique boiled down to the following:
The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.
Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)
Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.
In light of the foregoing discussion, I have a completely different reaction to the Republican's delaying tactics decried by the Times. To my mind, the miracle in all of this is that any nominees get confirmed at all.