"... if their position on the rule always reflects their political interests, then they are, essentially, lying"

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Why Do Judges and Politicians Flip-Flop?
To investigate, Cass Sunstein and I conducted a series of surveys.
By Eric Posner, January 26, 2015

A proposal by major Senate Republicans to abolish the filibuster for Supreme Court nominees has raised many eyebrows. Just a year and a half ago, Republicans had stridently complained when Democrats abolished the filibuster for lower court judges and executive branch positions. (“These are dark days in the history of the Senate,” said Sen. Mitch McConnell.) “We’re witnessing a massive flip-flop in slow motion,” said a Democratic spokesman of the new proposal. “Democrats appreciate the vote of confidence from Republicans in the wisdom of our rules change.”

Good arguments can be made for or against the filibuster, but it’s hard to justify a flip-flop. Sen. John McCain grumbles that his colleagues show “selective amnesia” by turning on a dime. The problem boils down to trust. When senators argue about the filibuster, they appeal to the public interest, but if their position on the rule always reflects their political interests, then they are, essentially, lying. It all seems like a game.

Republicans are hardly the only party to flip-flop. Democrats themselves used the filibuster to block many of President George W. Bush’s nominees, only to reverse themselves when it was President Obama’s turn. Democrats also seem to have forgotten their Bush-era complaints about the “imperial presidency.” None of them peeped when President Obama’s military intervention in Libya violated the War Powers Act. Meanwhile, Republicans have rediscovered the dangers posed by the imperial presidency under the Obama administration after eight years of silence under Bush. In the latest round of accusations, Democrats accuse Republicans of interfering with the president’s authority over foreign affairs by inviting the Israeli prime minister to give a speech to Congress while Republicans point out that Democratic members of Congress have in the past parlayed with foreign leaders.

Flip-flopping is ubiquitous in politics, and also in law. In a single week last term, Justice Antonin Scalia joined one opinion striking down a section of the Voting Rights Act while writing a dissent from the court’s decision to strike down the Defense of Marriage Act in which he argued that judges should defer to the will of the people. Justice Anthony Kennedy argued that Congress had disregarded the interests of states in his opinion striking down the Defense of Marriage Act, but ignored states’ interests himself in another opinion expressing skepticism about a Texas affirmative action program. Meanwhile, Justice Ruth Bader Ginsburg wrote a dissent in the voting rights case that noted the importance of giving deference to congressional fact-finding while joining Kennedy’s opinion, which disregarded congressional fact-finding about same-sex marriage.

Of course, not all flip-flops are the same, and not all accusations of flip-flopping are fair. Scalia and Kennedy could cite other reasons for their decisions. Democrats argue that they changed their position on filibustering because Republicans abused the process; Republicans have made the reverse claim. But the special pleading tends to reinforce one’s skepticism, especially given the ubiquity of flip-flopping. If Scalia, Kennedy, or Ginsburg have good reasons for their decisions, why not stick to them rather than appeal inconsistently to general norms?

Flip-flopping is so common that one might wonder why anyone pays attention to it anymore. Or why anyone believes the arguments of flip-flopping politicians and judges. A clue comes from psychology, which has documented a phenomenon known as motivated reasoning, in which people interpret the world in ways that support their own beliefs. For example, football fans of opposing teams believe that the referee is biased against their own team. Rather than acknowledge that their team might not be any good, fans blame the referee.

To investigate the role of motivated reasoning in the sort of institutional flip-flops that politicians and judges engage in, Harvard Law School professor Cass Sunstein and I conducted a series of surveys. In one, we asked people whether President Bush acted rightly by using a loophole to make appointments in defiance of Senate opposition. Most Republicans said he did the right thing while most Democrats said he acted wrongly. We then put Obama’s name in for Bush with a different group of respondents and asked the same question. This time the vast majority of Republicans opposed the appointments while most Democrats said he did the right thing.

We posed a similar question about use of the signing statement—Bush’s and now Obama’s controversial practice of signing a bill while stating that he will not enforce portions of it. Again, Republicans were more sympathetic to the practice when the question invoked Bush, Democrats when the question invoked Obama.

Like the football fans, most partisans see a neutral process in a favorable light if it advances their parties’ goals and in an unfavorable light if it does not. And this is true even if partisanship is not salient. We asked another group of respondents whether they supported same-sex marriage and whether they thought Congress could either mandate nationwide recognition of same-sex marriage or prohibit states from recognizing same-sex marriage. Same-sex marriage supporters were much more likely to believe that Congress could mandate it than ban it; opponents believed the opposite.

We call this phenomenon “merits bias”—a bias in favor of evaluating a rule or institution in terms of whether it advances one’s political goals. We suspect that some politicians and even judges suffer from merits bias while others cynically exploit merits bias in the general public. Many Democrats really do believe that the filibuster is justified when it blocks Republican nominees and not when it blocks Democratic nominees. And the same with Republicans. Political operatives and sophisticated observers know it’s a game, but most people don’t.

But all is not as hopeless as it might seem. While people flip-flop over ambiguous institutional norms like the filibuster and broad, unsettled constitutional questions like the power of the national government to override the states, they don’t once the questions are settled. Not even the most hardened cynics flip-flop over the rule that the president can serve only two terms, or that members of the minority party can serve on congressional committees. These rules are seen as fair as well as clear.

Flip-flopping occurs when the rules that regulate political conduct—such as whether a minority of the Senate can block a nomination—are unsettled. The problem—and here is merits bias again—is that one’s political and ideological views will color one’s idea of what is fair. And even when they don’t, one will often be more strongly motivated by one’s narrow political interest, such as winning the next election, than by fairness and the public interest.

The parties can overcome these biases through negotiation and deals, but only when they can see each other’s point of view. A useful way to do this is to don “the veil of ignorance.” Imagine that you do not know whether Republicans or Democrats will benefit, and ask yourself which rule for voting on judicial confirmations is in the national interest. You might decide on majority rule (so that the president can quickly put people in place) or a supermajority rule (to block terrible nominees). But you will at least be consistent rather than a flip-flopper. Then serious debate can begin.
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