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10/14/2020

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dissenter

I wonder if you would be writing this if the democrats were in control of the senate and presidency. It's fine to have an ethical view for when presidents should nominate justices, but it's not okay if you only apply this view to one political party. I guarantee you that if the situation were reversed the democrats would be confirming their appointee.

As far as the argument goes, I think it's wrong, and I would think it was wrong regardless of who was president. The president has an ethical mandate to make appointments, as that's his constitutional duty. If we want to change how the system works, there are ways to do that, but as long as this is the system we have there is no ethical requirement for the republicans to obey rules that don't exist and rules that the opposition has no legal requirement to follow.

Further, the ethical reasoning in question would seem to suggest that appointments just not get made when the president has a low approval rating or that the president somehow does a popular vote on who to appoint. However, our governmental system was explicitly set up so that judges would not be elected and for good reason--we don't want the judiciary to be political. Yes, this is unavoidable, but we can at least limit it. As far as leaving seats unfilled, this can cause its own rather obvious problems. We need a functioning judiciary.

Marcus Arvan

Dissenter: Yes, I would. It bugs me when either party acts in ways that I think are unethical, and the argument I present in my paper (and refer to in this post) applies equally to Democrats and Republicans. Further, I explicitly defend a point in my paper on Obama's nominating a Supreme Court justice at the end of his term that many Democrats opposed at the time: namely, that Republican Senators representing strongly Republican states had a *duty* to obstruct Obama's nominee.

More exactly, here is what I write in the paper:

"President Obama’s overall public approval rating from February 22-28, 2016 is 48% approve/48% disapprove, Congress’ is 14% approve/81% disapprove28, and over 56% of US citizens believe the Senate should hold hearings and vote on Obama’s eventual nominee. The revised version of Guerrero’s argument that I have defended thus suggests, first, that [President Obama] is roughly equally morally justified in functioning as the American people’s trustee and delegate at present—and so is not violating any duty to the American populace by putting forth a Supreme Court nominee. Second, insofar as a supermajority of Americans disapprove of Congress but 60% polled want the Senate to vote on Obama’s eventual nominee, the revised argument suggests that US Senators as a group have a strong moral duty to function as Americans’ delegates, as well as a duty as a group not to obstruct Obama’s nominee. Finally, however, insofar as citizens in some US States are strongly anti-Obama (and opposed to him nominating a new Supreme Court justice), particular Senators may nevertheless have a duty to their constituents (the citzens of their State) to attempt to obstruct the path of Obama’s nomination. But these are all, I believe, entirely plausible conclusions. Obama’s overall level of public support does suggest that he does have the moral authority to submit a nominee (at least as much as moral authority as he lacks), public support for his nominee being heard and voted on by the Senate does suggest that the Senate has a collective duty to hear and vote on the nominee—while, at the same time, strong opposition in certain US States to Obama successfully appointing a new Supreme Court Justice does suggest that Senator’s in those states should aim to obstruct his eventual nominee. Although these implications are obviously in tension with one another, they are precisely the implications that I believe a sound democratic theory of political ethics should have: elected officials should represent their citizens. Senators who represent citizens favoring obstructionism should obstruct, those who represent citizens against
obstructionism should not obstruct—and the final outcome (obstruction/non-obstruction by the Senate as a whole) should be a function of the level and kind of support that different Senators have in their respective states. That, intuitively is what democratic representation should be—
each representative representing the will of their constituencies, and the collection of representatives representing the will of the whole—and it is precisely the political ethics that our revised version of Guerrero’s argument entails."

Given that I have committed myself to this argument in print, I am happy to stand by it in a non-partisan way. If a Democrat were to nominate a liberal justice under current conditions, I would think it unethical for the same reasons I describe in this post, no matter how much I might support the justice they might nominate.

Also, I note that the argument in this post depends a great deal on whether the ethics of political representation should be understood in the way I argue (following Guerrero). I think many of the points you make are ones worth debating. For example, you write:

"The president has an ethical mandate to make appointments, as that's his constitutional duty. If we want to change how the system works, there are ways to do that, but as long as this is the system we have there is no ethical requirement for the republicans to obey rules that don't exist and rules that the opposition has no legal requirement to follow."

I think this begs the ethical question. The Constitution empowers the office of the President to make a nomination. It does not say *which* president shall do so, or at what time. It also empowers congress to deliberate whether to confirm the nomination. My argument in the paper is that the ethics of political representation requires elected officials--including Presidents--to be sensitive to changing levels of public support while in office. This ethical argument may be wrong--but it won't do to simply beg the question against it.

dissenter

There is no question begging unless there is an argument. Do you have an argument for the claim that it is unethical for the president to make an appointment if he doesn't have popular support? If the argument is just based on the premise that elected officials should represent their constituents, then sure as a general observation this is true. However, it's also true that our system has a certain design and certain rules in part based on practical limitations but also for other reasons. The ethical rules you've come up with would not work in our present system and are unenforceable. So, I guess I just reject the strong way you are applying the general premise. Maybe we can work toward a more direct democracy but that's not the system we have.

Marcus Arvan

Hi dissenter: There are arguments in the democratic theory literature that democratic representatives have a moral duty to represent their constituents. This article builds on that literature taken as a supposition. Whether that literature is correct is another story, of course, and this not something that I can resolve in a single post or that we can resolve here in a comments section. But I think it's a plausible moral idea that many people find compelling, and this paper argues that it has the implications described here. And again, I allowed in the post itself that the conclusions I derive here hold only *if* the premises in the argument are true.

In any case, while any political system has rules in place for practical reasons, I deny (rightly so, I believe) that ethics is a matter of simply following whatever rules are in place. For example, the Constitution confers upon me a legal right to free speech--but that does not mean that I have a *moral* right to say whatever I want, no matter how harmful. For example, I have the legal right to lie to you right now, but it would nevertheless be unethical for me to do so. Moreover, on that note, our moral rights and duties are clearly not exhausted by what is and is not enforceable. No one can force me to be honest, and yet for all that, I have a moral duty not to be bald-faced liar.

In short, the following two questions are distinct:

(1) Do we have a moral obligation to reform legal rules to make our democracy more representative?

(2) Do politicians have a moral duty to act in a more representative manner given our current system's rules?

I think the answer to both of these questions is 'yes', but that they are nevertheless different moral questions.

Dissenter

If you want to straw man my position that’s fine by me but you ignored the points about what would work within the system—leaving appointments empty perhaps for long periods of time—and the idea of enforceability—it’s unfair to expect A to follow rules that A cannot expect B to follow. Really for me it’s the second point that’s most relevant. Whatever the law should be, we have certain laws in place now. There are ways to change those laws. But as it stands Trump is under no obligation not to make an appointment: his opposition is under no such obligation if they were in the same situation, and trump cannot make this agreement or enforce such an obligation. What you’re asking is for trump to follow a rule that he should not expect his opponents to follow. So your argument makes for nice political theatre but not much more.

Marcus Arvan

Dissenter: I didn't mean to straw-man your position. I just don't see what would be deeply problematic about leaving the Supreme Court one person short for several months, especially when the individual in question might have to recuse themselves from relevant cases in the interim. I also, again, don't think enforceability is a good guide to our ethical duties. Most of our ethical duties aren't enforceable.

More broadly, you and I seem to disagree on particular practical matters, and the weight that they should play in determining who is morally obligated to do what here. I'm happy to be persuaded that the practical matters here should morally outweigh the argument laid out in the post. For example, if I were persuaded that leaving the Court one justice short for 3 months would make it impossible to have a functioning judiciary, then I would rethink the argument here. But I'm not persuaded of that (at least not as of now).

Finally, I guess I want to say that one person's "political theatre" is another person's argument that people should change how they think about things. That's what arguments are *for*, no? Few philosophical arguments dramatically change public opinion or practice. Yet we give arguments. Why? Because we think they are good ones that other people should consider. Few arguments are watertight, and most have problems. So we give the best arguments we can, debate them, and let each other decide whether to change our minds. That's all that I've tried to do here, and in the published work the post is based upon. I'm always happy to reconsider my position on this issue, as I am on moral and philosophical issues more generally (indeed, I've changed my mind many times in my career!). I just wanted to present the argument in the OP because I've published on the topic, and because I thought the argument was worth sharing. It's okay if you disagree.

Evan

Questions: Should elected officials respond to their constituents’ demand if their demand is unjust or unethical? How should they respond to such popular support of unjust or unethical demands?

My biggest concern with the argument is the neglect of any constraints on popular support when the popular support is supporting something ethically or constitutionally problematic. For this reason, the moral status of elected officials’ response to the changing levels of poll results should be evaluated on a case by case basis. Elected officials also have a duty to uphold and defend the constitutional law of equality. As such, their decisions may come into tension with certain polling results.

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