Because I’m a (intellectual) masochist I actually went and read the law review article that’s the subject of Scott’s post below. Here’s the justification for the authors’ “balanced Supreme Court” proposal:
Today, however, it seems like a quaint notion that Presidents would ever choose Supreme Court justices who would vote against their party’s interests in big cases. The Republicans made this mistake (if it is a mistake) in recent decades, which led them to vow to appoint “no more
Souters.”103 Democrats, despite having far fewer opportunities to appoint justices in recent decades, have done a reasonably good job of identifying ideologically reliable nominees. Given that
both sides seem to realize the stakes of Supreme Court nominations, it is hard to imagine that there will be many more justices like Justice Kennedy, who would sometimes vote against “type” in the biggest cases.
This proposal brings back the possibility of a Supreme Court that isn’t strictly partisan. The “partisan” justices would have to agree on colleagues who have a reputation for fairness, independence, and centrism, and who have views that do not strictly track partisan affiliation. In short, the kind of judges who have essentially zero chance of being appointed to the U.S. Supreme Court today. The partisan justices would pick such colleagues not for public-regarding reasons, but out of self-interest: assuming that those justices want their own views to prevail on the Court, they would have an incentive to veto committed partisans on the other side. But each side might be willing to compromise (and, really, to gamble) on other judges who seem open-minded and persuadable. (emphasis added)
This is just David Brooks Syndrome cloaked in judicial robes. Brooks’s schtick is to reduce all contentious political questions to a conflict between extreme partisan views, that should be resolved by charting a sensible, centrist, middle course between them.
The flaws in this approach include:
(1) It assumes that a centrist position is somehow less political or more reasonable or otherwise more sensible than a non-centrist position by definition; and,
(2) To maintain his pose, the centrist must always be shifting his positions to somewhere close to the midpoint between the dominant political ideologies, even if one of them (let’s call it “the Republican party”) is racing at light speed toward the most extreme radical reaction:
If Obama offered a deal to raise taxes through tax reform while reducing entitlements, Brooks would write a sad column about how nobody was willing to raise taxes through tax reform while reducing entitlements. If Obama favored education reform, an infrastructure bank, and more high-skill immigration, Brooks would write a sad column about how nobody favored those things. When Obama supported market-oriented health-care reform, Brooks opposed it as an extravagant government takeover. Then later he wrote a sad column about how “we’d have had a very different debate if we knew the law was going to be a discrete government effort to subsidize health care for more poor people” rather than “an extravagant government grab to take over the nation’s health-care system.”
The effect of all this commentary was not to empower the moderate ideas Brooks favored, but to disempower them. Brooks was emblematic of the way the entire bipartisan centrist industry conducted itself throughout the Obama years. It was neither possible for Obama to co-opt the center, nor for Republicans to abandon it, because official centrists would simply relocate themselves to the midpoint of wherever the parties happened to stand. The well-documented reality that the parties were undergoing asymmetric polarization was one they refused to accept, because their jobs was to be bipartisan, and it is difficult to get a man to understand something if his salary depends upon not understanding it.
This is the logic of reactionary centrism in a nutshell.
(3) In an increasingly ideologically polarized era, this kind of proposal is basically an illustration of Arrow’s Impossibility Theorem on meth: The swing justices become those who are selected precisely because their views are least likely to reflect the political views of the vast majority of people in any halfway coherent way. But that’s OK because they’re “reasonable open-minded non-partisan centrists,” aka, people who think David Broder really had it going on back when Tip and Ronnie ran the town. (It’s telling that DC centrist types constantly use the fact that almost no one actually shares their views as evidence of how right they must be. Imagine applying this logic to Yelp restaurant reviews: “The fact almost everyone hates this place is just evidence for how good it really is”).
I bet they’re “socially liberal and fiscally conservative” too, just like so many law professors and legacy media pundits.