The Law September 2002

Rejection Sustained

Republicans are suddenly steamed that "politics" is holding up judicial appointments. But politics is the point

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.

Presented by

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

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