Culture clash: Judicial philosophy

“Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.”

Ilya Somin thinks that Judicial Nominations and Competing Constitutional “Mainstreams” should be more about judges who are correct.

“there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct.”

The measure of this is in the split on decisions. The fact that there are so many decisions split 5:4 or even 6:3 indicates that being correct is either overly-difficult or not really in the picture. That is an underlying fundamental law problem.

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