"It's not that legal realism has no merit, it's that its merits are always overstated. Consider, for example, Professor Powe's assessment (as related by his likeminded colleague Brian Leiter): 'Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." . . . Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.'
"The difficulty with this notion, as I see it, is that we do not need the assistance of law professors to perceive the obvious. Powe may as well stand before his students and sagely advise them that doors are sometimes made of wood. That Scalia's and Stevens's contrasting views of the Constitution are of necessity politically informed and that this information impinges on their jurisprudence is plain as day. Almost no one fails to understand this. However, what many people, including lawyers, do fail to appreciate are the convolutions and subtleties of legal doctrines, constitutional and otherwise. The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former."
There are two central claims here, both of which, read one way, support my original points about legal realism:
First is the claim that it is "obvious" that political ideology plays a role in legal decision-making. (Let's bracket the fact that the central realist thesis was about the role of non-legal norms, not all of which are necessarily political in character.) This is true if we confine our attention to lawyers--and thus the Clerk's affirmation of this point supports my original claim that all lawyers know this to be true--but false if we are talking about non-lawyers. The public culture, after all, sustains the charade--carried out in endless confirmation hearings--that there is a solid distinction between those judges who will "apply the law" and those who will "make the law." If everyone really knew what the Clerk, qua educated lawyer, knows, then this charade wouldn't make any sense.
I am reminded of an extraordinary anecdote courtesy of Judge Posner when he was in Austin two years ago. He recounted the story of his own confirmation hearing, at which Senator Thurmond asked him the obligatory question, "If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?" to which Posner--being more intellectually honest, and less cowardly, than most--replied, "Well, Senator, it's a bit more complicated than that," and then proceeded in to a lengthy explanation of the necessity of judicial law-making, the ambiguity of the kinds of cases that require appellate review, and so on.
When Posner a few weeks later got the transcripts of his confirmation hearing, the exchange appeared as follows:
"Thurmond: If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?
Posner's actual answer was expunged because it obviously conflicted with the official line of the Reagan era--namely, that Reagan was nominating judges who would apply the law, not make the law, in contrast to those "activist" Warren Court liberals --and because the public culture, as I noted originally, is unaware of the realist claim that is obvious to lawyers, the Clerk included.
Second, and more interestingly, there is the claim that, "The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former." This misconceives the relationship, however, between doctrine and political ideology, at least as it figures in the legal realist thesis. For any plausible realist thesis about the indeterminacy of legal reasoning is the thesis that legal reasons underdetermine the legal decision in many appellate cases, i.e., the legal reasons circumscribe the range of legally defensible outcomes, but without requiring any one of them over all the others. Which is to say, in the Clerk's terms, that the doctrine, according to realism, always "constrains" the decision.
But constraint is not enough. The structure of the realist argument is that we face an explanatory gap in looking at a court's decision when,
(a) the legal reasons underdetermine the decision, but
(b) the court reaches (necessarily) one and only one decision from among those that the legal reasons would support.
The gap is filled by appeal to (complications aside) "political ideology."
Which returns us to the original point of my posting on legal realism: given that appellate courts necessarily get a disproportionate number of cases in which the existing doctrine underdetermines the outcome--that, after all, provides a powerful incentive for parties to appeal an adverse decision in a lower court--it is inevitable that appellate judges will have to rely on non-legal norms (moral, political, economic) in resolving the cases. Given that, it is sheer madness to think that those confirming such judges ought to ignore what moral, political, and economic norms judicial candidates subscribe to; and, conversely, it seems quite reasonable to reject those candidates whose normative commitments are too unpalatable to the party in opposition. As Professor Bainbridge called to my attention, while 168 of 174 federal court nominations have been approved by the Senate, only 29 of 46 appellate court nominations have been approved. And that is exactly as it should be, given the far greater role, by every knowledgeable observer's admission (including the Clerk's), that the moral, political and economic philosophies of the judges play in the decisions. Democrats don't vote for conservatives for office; why should Democratic Senators vote for conservatives for judgeships?