2. The Senate Judiciary Committee is not providing its advice and consent in a manner consistent with the Constitution or the rule of law.
In addition to the intentionally prolonged delay in voting on most of the President’s judicial nominations, several of the hearings that were conducted by the Senate Judiciary Committee were not only irrelevant to the merits of individual nominees, they instead attempted to lay the predicate for improper questioning at later confirmation hearings. In keeping with this agenda, hearings that were conducted for appellate court nominees during this Congress have been intentionally confrontational and focused on matters that are not properly the subject of such a hearing.
The few hearings that were conducted for appellate court nominees focused on a nominee’s supposed political beliefs rather than his or her qualifications or philosophy of judging. Texas Supreme Court Justice Priscilla Owen was cross examined for seven hours in one hearing this past July, despite her obvious qualifications to join the U.S. Fifth Circuit Court of Appeals. Justice Owen received a unanimous well-qualified rating from the ABA.Justice Owen’s reelection to the Texas Supreme Court in 2000 was endorsed by every major newspaper in Texas, and Owen won the support of a record number of voters in Texas. Yet, on a party-line vote, the Senate Judiciary Committee voted in early September to block her confirmation based on supposed ideological concerns. Last month, committee Democrats also tried to discredit and bully Miguel Estrada over his purported personal ideological leanings.
This conduct is based on a fundamental misconception some senators have regarding the proper role of judges and our judicial system. There is a crucial difference between political ideology, which is a set of political beliefs or goals, and a nominee’s judicial philosophy, which is a theory of, or approach to, judicial decisionmaking. Political beliefs ought to play no role in a judge’s judicial philosophy.
The rule of law is premised on the following bedrock principle:law can be objectively determined and fairly applied to all no matter what judge or other official is in power. The rule of law is an ideal, and every ideal is imperfect. Yet, American school children learn that this is an essential characteristic of our system of government. Ours is a nation of laws and not men, we are told. This is another way of saying that the application of the law does not vary depending on who is in charge. The law can be, and for the most part is, applied consistently and fairly to all. Any deviation from this norm is to be condemned, not encouraged.
Accordingly, the founding generation believed that the federal judiciary would be “the least dangerous” branch—in large part because they understood that the “judiciary power” was fundamentally different than that exercised by the political branches. In Federalist 78, Hamilton argued that legal traditions would cabin a judge’s role and mode of decisionmaking. A judge, he maintained, would exercise “judgement” not “will.” His argument presupposed that such a distinction was intelligible and readily understood. That conception of law—that judges can objectively discern what the law is, rather than what it should be—was the governing orthodoxy for over 130 years.
Rule by the party embodies a different ideal—one practiced by many communist nations. In that system, all judicial rulings are supposed to conform to the then current dictates, plans, agenda, or beliefs of the governing party. What is desired more than anything else in a judge or other government official is the proper political ideology, because that best informs all other action. Since there is thought to be no objective truth, the correctness of a ruling may change if the party line changes. Generally, only long-time party members who have proven their personal allegiance to the party’s teachings are entrusted with high government power.
Antecedents of this thinking in America can be found in post-civil war nihilism, but the legal realists of the 1920s were the first to significantly undermine the rule of law. Legal realism, mingled with strains of pragmatism, relativism, and deconstructionist thought, captured the legal academy between the 1920s and 1960s. It began to bear substantial fruit in the courts thereafter. It is an oversimplification, but the orthodox thought of this era—running at least through the mid-1980s—is that law is just politics by another name.
This development is profoundly misguided and destructive. Yet, it is not surprising that its adherents increasingly urged the courts to become instruments of social change in overtly political ways. The courts’ rulings ending government discrimination were (and are) necessary, but the tools the courts developed to fight the massive resistance to civil rights were also invoked to promote more amorphous social goals without clear constitutional foundations.
For a judge, such a seductive request is difficult to resist, even more so if the dominant legal culture has eliminated the traditional moral constraints on judging. With differences of style rather than content, the courts began to assume the role of another political branch to which dissatisfied citizens could turn to have their personal preferences, their will, enacted into law.
In this climate, it is easy to see why judicial confirmation battles might develop for Supreme Court justices. Unfortunately, the confirmation battles themselves further politicize the courts and reinforce the caustic notion that the courts are little more than a political plum. This notion was expressly stated by Abner Mikva and many liberal academics, who argue that Bush’s Presidency is illegitimate. Still brooding about the correct Supreme Court ruling in Bush v. Gore, Mikva and others who should know better have urged the Senate to confirm no Bush nominee to the Supreme Court and encourage all means of thwarting his legitimate nominees to the appellate courts.
Hearings conducted by Senator Charles Schumer last fall on “whether ideology matters” in judicial selection and more recently in connection with the D.C. Circuit Court are an outgrowth of that dangerous thinking. Perhaps ideology matters a great deal for a nominee or senator who believes that there is no meaningful difference between law and politics. But that belief would demonstrate to me that the nominee has an unacceptable judicial philosophy. No further inquiry into the nominee’s political beliefs is necessary. Testimony offered by President Clinton’s former Counsel, Lloyd Cutler, and President George H.W. Bush’s former Counsel, C. Boyden Gray, urged the Senate not to focus on political ideology in judicial selection. They both also agreed that extensive partisan inquiry is harmful to an independent judiciary.
A nominee with an appropriate judicial philosophy is one truly dedicated to the rule of law. Senators should be free to probe a nominee’s theory of judging, i.e., the methodology he would use when deciding cases, as long as the question does not ask the nominee to take a position on a matter that may come before him. Thus, I do not think that it is always enough for a nominee for a lower court judgeship to simply pledge that he will follow the law as set forth by the higher courts without explaining what that means. A record of scholarship or prior opinions, or a discussion of venerable old cases might help the committee to determine if the nominee appreciates what the rule of law requires.
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