While the confirmation process of judiciary candidates becomes partisan and trivial, the administration of justice goes unattended.Reuters
The nomination and confirmation process for federal judges is broken. It politicizes the judiciary, misrepresents the judiciary's role in our democracy, demeans highly qualified nominees, and unjustifiably delays or jettisons confirmations altogether. Such political theater trivializes a decision of considerable magnitude -- the lifetime appointment of a federal judge -- and has no hope of accomplishing its stated aim: the vetting of a candidate for the performance of the judicial function as it actually occurs.
Understanding why the process falls short of this aim requires an appreciation of the proper role of an American judge. Stated simply, it is to ascertain the relevant law, giving due respect to precedent, and to apply that law to the facts of the case at hand. To fulfill this role, a judge must remain detached and impartial -- and not merely from personal or financial interests. Judges owe no responsibility to party or social faction, and must not be concerned with whether an outcome will incur public approbation or wrath.
The foregoing is unquestionably true of federal judges beneath the Supreme Court, i.e., the district and circuit judges who decide all but the handful of cases that reach the Supreme Court. Such judges are bound by the Court's and their circuits' precedents. It is also largely true of the Supreme Court justices. Most of the cases accepted for review by the Supreme Court involve reasonable differences among lower courts' application of law or precedent that need resolution. The Court has greater latitude in constitutional interpretation, but, under the doctrine of stare decisis, it is still guided by its own prior decisions. And even when the Supreme Court departs from or overrules its own precedent, it engages in rigorous deductive reasoning and explanation.
But none of this judicial care is apparent from the spectacle of confirmation hearings, in which the Senate avoids appropriate questions about nominees' decision‑making processes in favor of persistent probes into their personal views on charged issues like the death penalty, abortion, gay rights, and whether a past Supreme Court case was wrongly decided.
It was not always like this. In 1993, during her Supreme Court confirmation hearings, then‑Judge Ruth Bader Ginsburg explained, "my own views and what I would do if I were sitting in the legislature are not relevant to the job" of a judge. She also declined to weigh in on previously decided Supreme Court decisions, explaining that she could only rule on cases in which she has heard and considered the parties' arguments. The Senate accepted these explanations and confirmed Justice Ginsburg by an overwhelming majority. But that was twenty years ago.
During the more recent confirmation hearing for Fifth Circuit Judge Priscilla Owen, one Senate Democrat opined that "[a]ny judge who doesn't answer questions about their philosophy, their views on the First, or Second or Fourth Amendments, should not be" appointed to the federal bench. Others professed bewilderment at the nominee's refusal to critique settled Supreme Court cases. The implication was that lower court judges' personal views, rather than law or precedent, govern the outcomes of cases. This is a view that senators on both sides of the aisle appear to have embraced. Senate Republicans defeated the nomination of (current California Supreme Court Justice) Goodwin Liu to the Ninth Circuit largely on account of his academic writings. These senators apparently rejected Liu's apt explanation that "there's a clear difference between what things people write as scholars and how one would approach the role of a judge."
The trend toward this kind of questioning reveals that senators seek to screen out nominees because they believe the nominees will reach outcomes the senators don't agree with. For a variety of reasons, this approach is unwise. In the first analysis, it relies on the assumption that judges rule based on their political views (after nearly 30 years on the federal bench, I can say that this almost never occurs). It is also shortsighted because it inevitably has a boomerang effect when the other party is scrutinizing candidates. The political benefits of this tit‑for‑tat practice therefore are a wash. Yet the long‑term costs are weighty.