The appearance of this Alliance for Justice one-pager on Fred Thompson's support for Senate consideration of judges' ideology during the confirmation process makes me think that question is likely to play a prominent role in the debate to come over Sandra Day O'Connor's successor. Chuck Schumer really kicked this controversy off about four years ago with his op "Judging by Ideology" in The New York Times and though the issue went dormant for a while after 9/11 it's clearly coming back.

As it happens, at the time the op-ed was published, I was Schumer's communications director's intern and, as such, played a small-but-crucial role (okay, actually I proofread) in preparing the document, and I've always thought it didn't express the underlying idea very well. For one thing, it uses the absurd phrase "much different" instead of the perfectly appropriate "very different." Beyond that, "ideology" as such isn't really the topic Schumer was trying to raise.

Something like your view on the appropriate level of taxation or your views on foreign policy are bound to make up a great deal of your ideological viewpoint. That kind of stuff, however, is pretty clearly irrelevant to the issue of judicial nominations. Even the most hardened legal realist out there understands that the Supreme Court can't repeal the Bush tax cuts or make the permanent, nor can it mandate Post Office privatization or any number of other things.

Given all that, saying the Senate should talk about "ideology" has a way of making it seem as if Schumer is calling for a truly crass form of results-oriented judging where Senators are supposed to engage in a free ranging inquiry into a nominee's political opinions.

My strong sense (you'll have to take that for what it's worth) is that this isn't what Schumer was trying to say. Instead, the main concern is with the tendency of some Senators to "justify their opposition by finding nonideological factors, like small financial improprieties from long ago." The main target of the op-ed is "'gotcha' politics" wherein the opposition party doesn't like the president's nominee and then goes around trying to dig up dirt of some sort on him or her. Instead, Schumer says, Senators ought to offer their real reasons for opposition.

The best way to think about this, I believe, is as a recognition that perfectly qualified, intelligent, honorable, and decent legal thinkers can still have profound good-faith disagreements about how to apply the law, and that these disagreements have important consequences. To say, as the President did, that you'll pick judges "who, one, can do the job, people who are honest, people who are bright, and people who will strictly interpret the constitution and not use the bench to legislate from" is to be disingenuous about this reality.

This amounts to asserting that every case of judicial disagreement boils down to either ineptitude or deliberate malfeasance rather than genuine disagreement. Now it's no doubt true that there is, has been, and always will be some ineptitude and deliberate malfeasance on the federal bench. At the same time, anyone who thinks that eradicating incompetence and malfeasance from the judiciary would lead to universal agreement about the application of the law is being irredeemably stubborn. It's obvious if you spend any time talking to people you disagree with that much disagreement is simply that -- disagreement. The formal materials that comprise "the law" underdetermine judicial outcomes, perhaps in a metaphysical sense or perhaps in a weaker epistemic one.

Either way, there's no reason to think that picking honest, intelligent judges of good character would eliminate controversy from the legal system. Nor, given the stakes, is it reasonable to expect Presidents or Senators to simply ignore such disagreements as they may have with candidates for the judiciary and even if it were reasonable to expect that we are aware that, in practice, this President has no intention of doing so.

That leaves Senators with two choices. One is to try and block judges they disagree with while searching for reasons other than simple disagreement for doing so. "Gotcha" politics, in other words. That could amount to trying to gin up a scandal of some sort, or it could simply amount to throwing around accusations of bad faith ("activist"), temperamental disability ("extremist") or what have you. The other alternative -- the one I take Schumer to be advocating -- is to simply let this disagreements themselves see the light of day.

Some thinkers believe precedent should have a great deal of weight in Supreme Court decision-making. Others disagree. Some think the Court should show a great deal of deference to congressional findings of fact. Others disagree. Etc., etc., etc. The view I'm attributing to Schumer, and the view that I myself hold, is that Senators ought to question judges on these matters -- not "ideology" as such, but legal theory -- and vote against nominees with whom they have serious disagreements. Judging is inherently political not in the sense that it's just like legislating or running for office, but in the sense that it involves decision-making about important subjects on which there's little hope for universal agreement. It's better to place these political aspects of the task front and center where they can be seen and ultimately evaluated by the voters rather than to throw smoke and mirrors over the whole thing.