The Tempting of the Fake Libertarian

Detailing all of the illogic in this piece of Instapunditry would be a greater time investment than I would prefer; let me just say that if you think his argument about filibusters is plausible remember what happened the last time there was a “real” filibuster related to the federal courts; you have to go all the way back to last term. If you don’t remember, it’s because the political impact was “none.” Anyway, the argument gets really bad as he brings the Pundit’s Fallacy to the field of judicial selection. Now, you might think a “libertarian” would have no particular willingness to defend a judge who, for example, distorts statutes in order to compel young women to obtain religious counseling before exercising their constitutional rights. But when you’re 1 part libertarian to 99 parts Republican hack, you don’t worry about making substantive arguments:

Of course, what Bush really ought to do is nominate a quirky libertarian judge like Alex Kozinski, thus confusing the Democrats and completely undermining their “the Theocrats are coming!”TM campaign. Unfortunately, Kozinski — though to my mind perhaps the best Court of Appeals judge of an age to be eligible for the Supreme Court — is almost certainly too politically incorrect (read: libertarian) to fly with the Republican powers-that-be, a fact that gives the Democrats’ sloganeering some shreds of credibility.

So once you boil off the strawman reduction of Democratic opposition to a small minority of Bush’s appointments as being about “theocracy”–a word Democratic politicians rarely use–the argument here seems to be that Democratic “sloganeering” is unfair, even though it’s right. (One might also be tempted to say that the rare overstated invocations of “theocracy” might be more easily dismissed if, for example, Bush’s favorite Supreme Court Justice hadn’t recently opined from the bench that “government derives its authority from God.”) Anyway, things get really funny when Reynolds attempts to claim that immense political benefits would accrue from suggesting judges who advocate extremely unpopular positions that are similar to those of Glenn Reynolds:

Which means that if the Democrats were smart, instead of just grimly obstructionist, they’d be out there floating names of judges like Kozinski as examples of candidates that they wouldn’t filibuster (Eugene Volokh would be a good one, too!). This would put Bush in a tough spot, as he’d have to explain why his candidates were better than Kozinski or Volokh, which would be hard, as there aren’t many candidates better than Kozinski or Volokh, or give more credit to the whole “Theocrats” thing.

Luckily for Bush, the Democrats aren’t that smart.

Yes, those stupid, stupid Democrats, not understanding the powerful political resonance of advocating the appointment of Alex Kozinski! Of course, the foundation of this risible argument is the dishonest claim that the Democrats are “just grimly obstructionist.” This is, of course, nonsense. Bush has had 204 nominees to the federal courts confirmed. Democrats have blocked only a fraction of Bush’s appointments, and of course given this fact the arguments made by Reynolds utterly collapse. The Democrats have made clear what kind of conservative appointments they will aceept and which ones they will not. The Democrats wouldn’t be “confused” by the appointment of a libertarian; either they would consider him or her unacceptable, or they would let them go (as they have confirmed any number of justices less odious than Priscilla Owen.) But even more remarkable is Reynolds’ conception of politics, which seems to be an unholy combination of the Pundit’s Fallacy, law school solipsism, and a bad junior high civics textbook. To state the obvious, if the Democrats took Reynolds’ advice, this wouldn’t put Bush in a “tough spot”; he would simply ignore the names being floated. And he would pay no political price whatsoever for this, because not one person in 100 could tell you who Alex Kozinski is. The idea that the public is clamoring for more libertarians on federal circuit courts and the Democrats could use this to put pressure on Bush is just remarkably clueless. And, of course, it doesn’t do anything to resolve the conflict, because it still doesn’t make Owen, Rogers and their ilk any more acceptable.

Fortunately, the Democrats have learned the right lesson from the many Clinton appointees that the GOP blocked under Clinton using the counter-majoritarian devices if the Senate: the political impact of doing so is nil. This is simply not a politically salient issue; virtually nobody votes on the basis of the number of appointments the Senate allows Republicans to make to the federal courts. It’s good that the Democrats are ignoring the self-interested “advice” of right-wing pundits for once.