While the confirmation process of judiciary candidates becomes partisan and trivial, the administration of justice goes unattended.
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.
First, the politicization of confirmation hearings perpetuates the misconception that the judicial role is political. This lowers the public esteem on which courts depend. Federalist Paper No. 78 famously pointed out that the judiciary has neither the legislature's purse nor the executive's sword. Thus, compliance with court decrees is generally voluntary. It cannot be expected if litigants believe that judges ignore the merits in favor of personal predilection. This danger is especially great in the context of rulings against other government actors. Presidents obey judicial decisions -- as President Nixon did in turning over the Watergate tapes, sealing his resignation - -because not doing so would lead to constitutional and political crisis. But as the public grows to perceive judges as political, it becomes easier for presidents and others to disregard judicial decisions as partisan pronouncements.
Second, fewer qualified candidates will seek or accept judicial nominations if the confirmation process includes publicized political attacks as a matter of course. Some years back, after the contentious hearings over Robert Bork's failed Supreme Court nomination, a distinguished Second Circuit colleague of mine remarked that he would never accept a nomination to the Court.
Third, as senators play whack‑a‑mole with judicial nominations, vacancies on the federal bench go unfilled and the administration of justice is impeded.
Finally, the politicization of confirmation hearings sows public distrust in government institutions as stabilizing forces in our racially, ethnically, and religiously disparate society. Americans yearn for a government they can believe in. By unnecessarily and gratuitously distorting the judicial role, Senate hearings weaken the government as a whole in the eyes of the public. The time of a senator can be put to better use.
To be clear, I do not advocate a return to the days when judicial nominees were confirmed as a formality without hearing or comment. A federal judgeship is a post of considerable authority--and a tremendous honor--and should not be bestowed lightly. But the scrutiny directed towards candidates should be germane to the job and methodology of a judge. For the types of questions that fit the occasion, we need not look much further than to the questions Benjamin Cardozo posed to himself 90 years ago:
What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals?
Common law judges like Cardozo have greater flexibility to bring policy considerations into play than typical federal judges who, in ordinary cases, interpret text and are bound by precedent. But questions like these reflect a proper understanding of the judicial role. They also bespeak a genuine desire to foster judicial independence free of political influence that is tempered by judicial restraint, and thereby to uphold one of the cornerstones of the American experiment.
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