In my last post I scrutinized the tendency for contemporary political discourse to use the pejorative term “flip-flop” to refer to virtually any change of position by a candidate for public office. I argued that this usage uncritically discounts the possibility that some position changes are not only entirely justified, but should, if anything, improve our perception of a candidate, and that the likely effects are excessive cynicism and an exaggerated sense of the value of consistency. In this post, I want to add one more argument to the critique: contemporary usage is also problematic because it tends to attack position changes without regard for the public office the candidate seeks, and thus fails to appreciate how the particular constitutional function of the office might make a candidate’s shifts more or less problematic.

To understand this point, first note the breadth of the contemporary usage. Flip-flopper critiques are obviously a common rhetorical tool in the current presidential race. But they seem to be comparably common—even if less visible—in races for the U.S. Senate and House of Representatives, and in campaigns for state office, including state judgeships. The usage in each of these contexts seems roughly to track that which occurs in the U.S. presidential race—news media and opposing candidates attack apparent inconsistencies or position shifts by labeling them “flip-flops.” Although based on admittedly sporadic observation, my sense is that the attacks don’t vary much by office; those targeting candidates for the U.S. House, for example, don’t meaningfully differ in intensity or form from those targeting nominees for judicial office.

But perhaps they should. The differing functions of these offices are obvious. They have different terms of service. They carry different powers and obligations. And they serve different purposes; the Constitution shields some from popular pressure while directly subjecting others to the very same. As I explained previously, position changes can be responses to new facts, responses to new discoveries of preexisting facts, sincere changes in candidate beliefs, or pandering. There is good reason to think that whether explanations within this typology can justify a position change should vary with the unique characteristics of the office at issue.

Consider, for example, position changes that are based upon shifts in public opinion. We can fit these into the typology by viewing them as changes founded on changed facts, with the facts being two different prevailing public opinions on an issue within a fixed period of time. Whether we should be concerned about this type of change seems to depend largely on the office the candidate seeks. At one end of the spectrum are candidates or nominees for federal judicial office. Here, a shift in public opinion generally should not qualify as a relevant form of changed fact so as to justify a change in position for at least two reasons. First, the Constitution intentionally insulates the federal judiciary from public opinion. Evidence that a nominee alters his positions to keep up with mercurial majority views could suggest a risk to the judiciary’s independent and insulated constitutional function once the nominee obtains the appointment. Second, the predictability of the common law depends upon respect for precedent. Evidence that a nominee changes positions in response to public opinion might suggest a tendency of disregard for stare decisis that will render the law less stable and predictable.

At the other end of the spectrum are candidates for legislative bodies—such as the U.S. House of Representatives—that are constitutionally designed to be maximally responsive to public opinion. Here, the constitutionally mandated combination of elections and short office terms incentivizes legislators to pay close attention to the majority preferences of their constituents, and punishes those who refuse to shift along with the voters. By doing so, the Constitution makes public opinion the primary guide to the office-holder’s decision-making, and affirmatively encourages position changes that are responsive to changes within the electorate itself. Evidence that a candidate for such an office evolves with public opinion may suggest simply that the candidate will carry out her primary constitutional function.

Other salient points along the spectrum include President and Senator. For these, perhaps the most that can be said is that their term lengths suggest that, everything else being equal, consistency is more important than it is for members of the House, but less important than it is for federal judges, and that the strength of justification for public opinion-based position changes also falls somewhere in between.

So far, my hope is simply to have made clear that contemporary discourse is indiscriminate in its use of the flip-flopper critique. In my next and final post on the subject, I’ll attempt to explain why the critique remains so common.