FORUM

One hundred seventy years ago Alexis de Tocqueville observed that there is no significant political dispute that doesn’t sooner or later wind up in American courts, but even Tocqueville could not anticipate the situation in late twentieth and early twenty-first century America where judicial disputes have become a white-hot political issue.

The future of American jurisprudence is now being decided in the United States Senate, where a small group of judiciary committee members, most notably Senator Charles Schumer (D-NY), Senator Patrick Leahy (D-VT), Senator Richard Durbin (D-IL), and Senator Patrick Kennedy (D-MA), have been articulating a theory for blocking several of the judicial nominees of President George W. Bush. This theory, based on the notion that there is such a thing as “judicial ideology,” and put forth most dramatically in some Senate hearings orchestrated by Senator Schumer during the period when the Democrats briefly controlled the Senate shortly after President Bush’s election, appears to have been concocted with the advice of several liberal law professors, most notably Chicago’s Cass Sunstein. Reliant on the jurisprudential tenets of the kind of “legal realism” practiced by Oliver Wendell Holmes, Jr. and his admirers and successors such as Jerome Frank, this “judicial ideology” theory holds that the outcome of particular cases will be determined by a judge’s personal predilections, that these predilections are inescapable, and that the cause of justice is best served by achieving a “balance” of judicial ideologies on the bench.

Borrowing perhaps from the kind of pluralism thought to be advocated by Madison’s famous Federalist No. 10, the notion seems to be that if no particular judicial ideology is allowed to dominate, extreme views will cancel each other out, and some sort of wise Aristotelian mean will predominate on the bench. Thus the Democrats on the Judiciary Committee can oppose nominees that they claim are out of the “judicial mainstream,” as they successfully did, for example, with Miguel Estrada, lest the “balance” on the bench be too strongly altered. Senator Schumer, in his hearings on “judicial ideology,” appeared to come close to the suggestion that if a President sought to confirm someone possessing the “conservative” judicial ideology of an Estrada (one that was believed to have a predilection for decision-making hostile to abortion, to affirmative action, or to the secular public square), the President had an obligation, at the same time, to put forward nominees displaying a “liberal” judicial ideology that was friendly to those achievements of late twentieth century liberal jurisprudence.

Republican and scholarly commentary at Senator Schumer’s hearings suggested that “judicial ideology” is a concept oxymoronic at best, and constitutionally subversive at worst, since the principle of the rule of law, on which our system is ostensibly based, demands judges committed to a non-partisan effort objectively to determine the law in any given case. That commentary (some of which I was privileged to supply) relied essentially on the old chestnuts of Constitutional law, particularly Federalist 78, in which Hamilton defends judicial review as an objective effort to implement the will of the people as expressed in the Constitution, and by reference to the Baron de Montesquieu, on whom Hamilton relied. In Montesquieu’s Spirit of the Laws, which the framers regarded as the then greatest work of the “science of politics,” the Baron famously remarks that there can be no liberty if the judicial function is not separated from the legislative. In academic (and liberal Democrat) circles, such a view is today regarded as hopelessly naïve, so complete has been the victory of Holmesian legal realism and its assignment of a legislative role to judges. Still, a repudiation of legal realism remains the official position of the Republican party, its President, and its members on the Judiciary Committee, most prominently Senator Jeff Sessions (R-AL), and Senator Orrin Hatch (R-UT).

Whatever the validity of the competing jurisprudential paradigms, what counted in the Senate where the confirmation battle was fought was, of course, the number of Senators necessary to block a nomination. For the first time in American history, Democrat Senators engaged in a concerted effort to block nominees they claimed exhibited the wrong “judicial ideology,” by filibustering and forcing cloture votes that the Republicans, who lacked the necessary 60 votes, could not win. Prior judicial nominees had been individually subjected to brief delays from such tactics, and, to be fair to the Democrats, when the Republicans controlled the Judiciary Committee during some of the Clinton years, some nominees were never even brought to Committee for a vote. The Republicans who blocked those nominees could argue that they did so because the nominees believed it is the job of the judiciary to make social policy, and that by preventing such people from reaching the bench they preserved the traditional judicial role. The Democrats who blocked President Bush’s nominees could not retreat to such a traditional argument, and thus had to concoct their excuse based on purported “judicial ideology.”

In any event, an objective observer, if there were any, would probably have concluded that the confirmation process could be and had been slowed (if not stymied) by both Republicans and Democrats, depending on who was making the nominations and who controlled the Senate. It could also be said, considering the efforts of the Democrats in the early twenty-first century, that the ostensible constitutional requirement that the Senate advise and consent to nominees by a majority vote had been transformed into one demanding 60 rather than 51 votes.

Considering the views of such senators as Senator Schumer, who even suggested that nominees had a “burden” of persuading Senators that their “judicial ideology” was not improper, it could also be said that the Senate, rather than exercising the relatively more passive role the words “advise and consent” suggest, had come to view itself as an equal, if not a superior partner in the judicial selection process. This would surely have shocked Madison, Hamilton, and Jay, the rest of the framers, and most Americans over the course of our history, who had seen most judges confirmed as a matter of course, and who believed that not ideology, but professional competence was the only criterion for judicial selection and confirmation.

On the other hand, the same shock would have resulted from a reading of many late twentieth and early twenty-first century Supreme Court decisions, most notably perhaps, Justice Kennedy’s opinion in Lawrence v. Texas (2003) (holding that states could not criminally punish consensual homosexual acts), which more or less abandoned all pretense to be following the rule of law, and looked instead explicitly to emerging cultural trends in Europe and implicitly to psychological theories about the development of personality through sexual expression. The triumph of judicial legislation and legal realism on the highest court in the land, in short, made plausibly legitimate their defense by the Democrats in the Senate. If the Supreme Court could run roughshod over the Constitution’s design for the judiciary (at least as expressed in Federalist 78), the Senate could similarly articulate a new role for itself, even if such a role involved repudiating the original scheme.

Whether the confirmation process was broken or not, then, depended on one’s views about “judicial ideology,” or, more precisely, what one thought the constitutional job of judges was. Whatever one might think, however, it was undeniable that the process of picking judges had become more “political,” although the precise nuances of that politics were perhaps not often remarked upon.

The “judicial ideology” trump card seemed to be played by the Democrats more often to block Republican conservative nominees who were Hispanic (Estrada), Black (California Supreme Court Justice Janice Rogers Brown), or women (Brown and Patricia Owen), while someone with the same “judicial ideology,” who was a white male (e.g. Michael McConnell) had a relatively easier time of it. Most speculated that this was to deprive President Bush of the chance to elevate an ethnic conservative to the Supreme Court, after a period of service on the court of appeals bench below, and it is probably significant that Estrada, Brown, and Owen were all slated for the court of appeals, while Bush nominees to the district courts were confirmed in much greater numbers, without much fuss. The usual explanation for the Senate Democrats’ blocking of Estrada, Brown, and Owen (and others like them who might eventually be on the Supreme Court) was that abortion, affirmative action, federalism, and gay rights cases were decided in recent years by 5-4 majorities, that an ethnic nominee would be more politically costly for Democrats to oppose than a white male, and that by blocking these nominees at the less visible Court of Appeals level the Democrats could maximize their chances of preserving their favored constitutional results. Equally likely, however, was the fact that the Democrats were concerned that by successfully placing Hispanics, Blacks, and Women on the Courts of Appeals, or on the United States Supreme Court, the Republicans might well win votes from core Democratic Party constituencies, in accordance with a principal political aim of President Bush. One suspects that it is this simple political arithmetic that really explains what is going on with judicial confirmation. Judicial nominations are now made or opposed much more often with an eye toward pleasing or attracting constituencies and not simply to preserve a form of jurisprudence.

Finally, there is a strange political dimension that dictates the continuation of an appearance of an impasse, whether one actually exists or not. Fund-raising for the Democratic Party has been facilitated by blocking conservative nominees, on the theory that it is the only thing standing in the way of a repeal of Roe v. Wade; fund-raising for the Republicans is facilitated by their ability to claim that they are fighting the good fight against judicial activism and for the preservation of “family values.” To both sides the preservation of these “red-meat” issues for fund-raising and base reinforcement purposes seems essential, at least at the present time.

That this is so is suggested by the fact that whenever the Republicans cared to, they could exercise their so-called “nuclear option,” and, by a simple majority vote of the Senate, alter that body’s rules allowing filibusters in the case of judicial nominees. It would require a bit of parliamentary legerdemain, but it could relatively easily be done. If there ever were a real belief that the judicial confirmation process is broken, Republican (or, in a future situation, Democrat) Senators could employ this tool of confirming nominees and return the process to its Constitutional conception. The fact that it is not being done now suggests that politics still triumph over the original constitutional theory of an objective judiciary.

The judicial confirmation process is probably not broken, but the traditional conception of the judicial role, battered by partisan politics, certainly remains on life-support. Hamilton, Tocqueville and their influential predecessor, Montesquieu, all implied that if Americans ever abandoned the concept of a judiciary above politics, popular sovereignty would suffer because legislating would be done by law lords and not the people’s representatives. Were the three alive today, they would weep.

April 15, 2004

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