The Law September 2002

Rejection Sustained

Republicans are suddenly steamed that "politics" is holding up judicial appointments. But politics is the point
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Few aspects of American political life generate more fatuous obfuscation than the selection of judges to sit on the federal bench. President George W. Bush decries opposition to his nominees by Democratic senators, charging that their resistance derives, shamefully, from "politics." Yet he almost always nominates Republicans for judgeships. Conservatives denounce liberals who openly admit that for them ideology is a major basis for assessing the President's nominees. Yet simultaneously the President makes clear that ideology matters greatly to him in choosing them; after all, he has declared publicly that he is looking to appoint "conservatives." Senate Republicans accuse Senate Democrats of creating a "vacancy crisis" by delaying hearings for judicial nominees, but during the years when Bill Clinton was President, Orrin Hatch, Trent Lott, and their Republican allies conspicuously slowed the confirmation process to a crawl. After the Senate blocked Robert Bork's confirmation, in 1987, bitter supporters complained that Democrats had pre-judged Bork negatively, which was largely true. His champions, of course, had also pre-judged him, but positively. Republicans charge that Democrats have a litmus test for assessing a nominee—namely, the jurist's views on the legal status of abortion rights. But Republican Presidents have the same litmus test; they just want the opposite result.

In the face of these charges and countercharges, many Americans are inclined to chastise the ideologues on the left and the right. They would contend that our heated and protracted disputes over judgeships are dangerous, that those on both sides of the fighting are wrong, that the left and the right should stop "playing politics" with judicial selection, that considerable deference should be given to any President's choice, and that in deciding whether or not to confirm the President's pick, senators ought to confine themselves to evaluating the nominee's integrity and competence. Proponents of this view evoke with warmth memories of a time when nominees, even for the Supreme Court, were confirmed by acclamation, and when "law" was thought to occupy a plane altogether different from and higher than "politics."

This school of thought—call it the deference school—ought to be rejected. To some extent the past it evokes is imaginary, the product of yearning for a consensus that has frequently been absent. The Senate rejected George Washington's nomination of John Rutledge to be Chief Justice even though Rutledge had been confirmed as an associate justice and was already serving as Chief Justice thanks to a recess appointment. Why did the Senate rebuff the nominee of the Father of His Country? Because Rutledge had harshly criticized the Jay Treaty with Great Britain, prompting a majority in the Senate to doubt the political soundness of his judgment. Since then senators have often voted against nominees on substantive political grounds, openly stating their concern that such candidates would be likely to rule the wrong way on matters of high public importance.

Sometimes, as in the case of Rutledge, ideological opposition has prevailed. President Herbert Hoover's Supreme Court nominee Judge John Parker was rebuffed by the Senate in 1930 because of his perceived aversion to the labor movement and to civil rights for blacks. More often ideological opposition has failed. But contrary to the claims of the deference school, senatorial opposition based on publicly aired ideological disagreement is by no means new.

Senators ought not to accord to any nominee a presumptive entitlement to confirmation. The Constitution declares no such presumption. It vests the President alone with the power to nominate federal judges, but it also directs the President to obtain "the Advice and Consent" of the Senate. As a functional matter, the Constitution thus gives the Senate a veto over the President's judicial selections. Expecting senators to ignore politics when exercising this responsibility is silly. Judges, after all, are policymakers who, like legislators and other officeholders, exercise discretion, express values, and weigh consequences in reaching conclusions. Whether one thinks a given nominee would be likely to carry out these tasks well—or even tolerably—depends on one's own political preferences and tenets. Of course, we (through our senators) need to evaluate the basic honesty and competence of nominees. But we need equally to assess their philosophy, ideology, politics (in this context I see these words as synonyms). Jurists may be perfectly competent, honest, and honorable—and yet may also be properly regarded as wholly unfit to wield judicial power.

One of the worst features of the current regime is the incentive it gives for scandal-mongering. People who are nervous about opposing a nominee straightforwardly on ideological grounds search for any sort of peccadillo to serve as a non-ideological pretext for opposition. We would be far better off if senators openly opposed nominees for substantive reasons, rather than ones that would probably have been overlooked in the absence of substantive disagreement.

Since senators ought to take into account the likely voting pattern of a nominee, they ought also to have access to information that helps them predict that pattern. Yet nominees (often on instruction from White House handlers) thwart information-gathering by declining to answer certain questions during confirmation hearings. They do not mind, of course, questions that will generate entirely uncontroversial answers. For example, during her Supreme Court confirmation hearing, in 1993, Ruth Bader Ginsburg eagerly declared her belief that Marbury v. Madison (the case establishing the authority of the Supreme Court to invalidate congressional statutes) was rightly decided and that Dred Scott v. Sandford (the case holding that blacks could not be citizens of the United States) was wrongly decided. However, nominees seek to avoid articulating beliefs about controversial subjects. For example, Ginsburg declined to answer Senator Strom Thurmond's rather general query about the constitutionality of vouchers in public schooling. Explaining at the outset of her hearing why she would refuse to answer certain questions, Ginsburg declared, "Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to the Court based on particular facts, and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process."

That explanation is unpersuasive. Since, in Ginsburg's view, justices ought to decide only specific, concrete cases, she should not worry about sharing with the public her general views about disputes that are likely to come before the Court in some form. When those disputes arrive, they will necessarily be garbed in the particularities of a given controversy and thus will be subject to considerations different from (though related to) those posed by a question at a hearing.

Besides, many nominees have already served on lower courts, and have thus displayed more than a hint of their considered opinions; they may have made several pertinent and revealing rulings on a given subject. Such judgments offer a very clear forecast of how these jurists are likely to rule in the future. But presumably Ginsburg (herself an appellate judge before her advancement to the Supreme Court) would agree that having issued a ruling on a subject in the past does not, and should not, preclude a jurist from adjudicating future cases in which that same subject emerges.

Those who have not left a paper trail sometimes simply plead ignorance—claiming that they have thought little about a vexing subject, and attempting to make a virtue out of emptiness. When confronting this line, senators ought to say that a nominee is either disqualified for dishonesty or—if he or she truly lacks well-developed ideas about privacy, or federalism, or equal protection—insufficiently learned or thoughtful to be placed on the bench. The savvy conservatives at The Weekly Standard were absolutely right when, in 1997, they asserted,

The Senate should genuinely slow down the confirmation process, ignore the manufactured hysteria about vacancy statistics, and perform a truly searching philosophical analysis of pending and future judicial nominees ... The Senate should demand [that nominees] thoroughly explain their understanding of constitutional principle and jurisprudential practice—whether they want to or not. And any judicial nominee who refuses this invitation to public debate about the law, we think, should be rejected.

Although they may have changed their minds after the Republican take-over of the White House, their demand for searching scrutiny of nominees remains correct today.

A realistic understanding of what judges do, and of how and why they are selected, makes clear that all interested segments of the polity should, without embarrassment, support or oppose candidates on the basis of educated perceptions of what those candidates are likely to do if confirmed. Trying to banish politics from the process is futile; after all, it is inconceivable that the President's influence could be depoliticized. And even if it were possible to make the Senate's role apolitical, doing so would be wrongheaded. Judges are endowed with tenure for life and with the authority to strike down legislation. The active role of dissident senators in examining and confirming them is a vital hedge against political error—especially when the White House and the judiciary are dominated by the same party.

Randall Kennedy is a professor of law at Harvard Law School.
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