Outcome selection is simply the manifestation of politics in the judicial process, and if political forces rather than the law guide judicial decisions, then the law will mean nothing at all. Confirmation Process Shouldn't Be a Political Quest for Legal Outcomes

The Importance of the Rule of Law

In the abstract, federal judges have a relatively simple sounding mission: administer our justice system by interpreting and applying the law. In practice, the role of a judge is extraordinarily complex, and the role of a Supreme Court justice even more so. Judges must apply complicated laws and interpret often ambiguous commands from other legal authorities. They must face litigants who have been badly aggrieved while still maintaining objectivity. Most importantly, our judges are entrusted with the critical task of determining how and when the Constitution, our nation’s fundamental law, limits the government’s power.

But at the core of this complexity lies a principle that is very simple, indeed. The law must come first.

It has been observed correctly that the foundation of our constitutional system is the rule of law. This is undeniable. Consider a system in which the government or the people routinely ignored the law. There would be no effective limit on government power or on individual action. Efforts to enforce such limits in courts would be useless. Anarchy would reign.

Instead, we rely on our legal system and the popular respect of the rule of law to hold back the inevitable chaos that would follow in their absence. At the core of our legal system, “We the People of the United States” have established a Constitution to serve as our nation’s fundamental law. And, in doing so, “We the People” have chosen to surrender to the government certain rights and authorities that we would otherwise naturally retain. “We the People” have not, however, surrendered everything. Indeed, the Constitution serves more to define the limits of the government’s power than it does to invest it with authority over us.

Luckily for us, the Framers understood that left unchecked, the government would simply ignore those limits and seize all of the power, inevitably resulting in tyranny and oppression. As they drafted the blueprint for our government, they understood that only the law could protect the people from tyranny. So they made the courts a separate and co-equal branch of our government, and they rejected suggestions that they adopt the English system where a legislative body (in our case, the Senate) would be the final word on legal matters.  As distinguished law professor and constitutional history expert Paul Presser observed in testimony before a Senate subcommittee, “the genius of the separation of powers in America is that law is different from politics, and liberty and rights in this country are best protected by maintaining that separation.” (Emphasis added.)

The Framers understood, as Alexander Hamilton wrote in Federalist No. 78, that “the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep [Congress] within the limits assigned to [its] authority.” Put another way, the Framers expected that Congress and the President would be the political branches, subject to the whims of those who elected them. The courts, on the other hand, would put politics aside and focus only on the law. As long as the other two branches and the people retained their respect for the rule of the law, the courts would be in a position to protect the people from the government and from each other.

However, the Framers themselves recognized that this was asking a lot. They understood that in real terms, the judicial branch would be the least powerful of the three. Indeed, Hamilton observes in Federalist No. 78 that the judiciary would have neither the power of the purse nor of the sword and, hence, would be dependent on the other two branches.

Judges Set Apart from Politics

Therefore, in order to be effective guardians of individual rights and arbiters of the law, the courts must maintain a moral superiority, exhibited by objectivity. Should the judiciary be trivialized or the respect for the rule of law diminished, the lynchpin of our constitutional system would be removed, and the system itself could crumble.

To achieve this, the Framers embraced a system that set judges apart from politics. Rather than political functionaries weighing the sentiments of the people or even relying on their own consciences, Federalist No. 78 instructs that judges are “to avoid an arbitrary discretion,” and instead should make decisions based on the law, bound by “strict rules” and “a very considerable bulk” of precedent “which serve to define and point out their duty in every particular case that comes before them.” In practical terms, this means that judges should not approach any case with notions about what the proper result might be. Judges must also be prepared to rule against even the most sympathetic claim if that’s what the law instructs.

Put more succinctly, judges must not be concerned with selecting a “desirable” outcome. They must, instead, focus on the law and let it lead them to the proper legal result.

The Framers understood, as we should, that outcome selection is simply the manifestation of politics in the judicial process, and if political forces rather than the law guide judicial decisions, then the law will mean nothing at all.

Politics Infecting the Judiciary

The Senate’s deliberation of Judge John Roberts’ nomination to the Supreme Court demonstrates, however, the extent to which politics is increasingly infecting the judiciary.

Within hours of his nomination, groups on the Left and the Right and Senators of both parties began expressing concerns about Judge Roberts’ views and framing questions that they hope he will answer. Nearly all are aimed at determining how Judge Roberts will rule in particular cases.

For example, abortion interest groups on the Left and the Right want to know whether Judge Roberts will vote to uphold or overturn Roe v. Wade. The National Abortion Rights Action League (NARAL) is opposing Judge Roberts’ confirmation because its advocates believe he does not share their view of the issue. Environmental groups are worried because Roberts might not agree with their expansive interpretation of the Constitution’s Commerce Clause under which they believe Congress is empowered to protect endangered species.

Individual Senators have also joined the demand that Roberts pronounce his views on particular issues. Senator Patrick Leahy (D-VT), the top ranking Democrat on the Judiciary Committee, said that he would vote against confirmation if Judge Roberts expressed views supportive of recent Supreme Court decisions “str[iking] down parts of the Violence Against Women Act, environmental acts, [and] child safety legislation.” In a supposedly private meeting later detailed in the press, Senator Ron Wyden (D-OR) asked Roberts about Congressional intervention in the Terry Schiavo case with the obvious hope that Judge Roberts would indicate his disapproval. Senator Charles Schumer (D-NY) sent Judge Roberts a seven-page list of seventeen questions, each with numerous subparts, seeking the nominee’s specific views on a wide range of specific legal issues. More are sure to follow as Senators grill Judge Roberts under the bright lights at his Senate confirmation hearing.

Previously, Senator Schumer, with aid and comfort from liberal law professors Laurence Tribe and Cass Sunstein, hosted a subcommittee hearing during the brief interlude in 2001 when Democrats controlled the Senate that was designed to justify more intrusive questioning concerning a nominee’s ideology. But in explaining his definition of that term, Schumer admitted “ideology” is essentially outcome-seeking and revealed his true political motive:

I have been asked by some: what do we mean by ideology? … What it means is your views on not just broadly that you would support the Constitution, but what is your view of privacy, what is your view of how broadly or narrowly the First or Second Amendments should be interpreted, what is your view of federalism and the amendments that relate to the relationship between the State and the Federal Government. And there is also, in my judgment, nothing wrong with asking about decided cases, such as Roe v. Wade, such as Lopez, such as so many of the others that have come up.

Schumer’s statement also reveals this quest to determine outcomes is simply an attempt by political groups and politicians to assure that the next Supreme Court justice shares their political views.

The Framers certainly never intended judicial nominees to be subjected to such inquisition. In Federalist No. 76, Hamilton makes clear that the Senate’s role in the confirmation process is to ensure that the President is not practicing favoritism or cronyism in his selections. Hamilton goes on to predict that Senate rejection of judicial nominees will be infrequent. “It is not likely that [the Senate’s] sanction will often be refused, where there are not special and strong reasons for the refusal.”

Indeed, confirmation hearings for Supreme Court nominees did not become common until 1955. The first nominee to testify at all was then-Attorney General Harlan Stone in 1925, and then only to answer allegations of prosecutorial misconduct.

Unfortunately, over the last four years, Democrats seeking to obstruct President Bush’s judicial nominees have escalated the ideological war they began with Judge Robert Bork’s nomination in 1987, and have relied more and more on outcome-focused questioning. In doing so, they have politicized the confirmation process as never before. But applying the kinds of ideological tests that are now advocated, judicial giants like Justices Oliver Wendell Holmes and Hugo Black would never have been confirmed.

Increasingly, conservatives and Republicans are joining the chorus. Even as Senator Leahy, Schumer and Wyden together with groups on the Left began clamoring for Judge Roberts to answer their questions, a number of commentators on the Right weighed in to support the idea of expansive questioning. Judiciary Committee Chairman Arlen Specter (R-PA) sent Judge Roberts’ a letter previewing specific questions about Roberts’ views on Congressional power under the Commerce Clause. Some conservatives have expressed concerns about Judge Roberts’ positions on social issues like gay marriage, while others have insisted that he be rejected if he won’t pledge to overturn Roe.

But insisting on outcome-seeking questions is inappropriate whether instigated by the Left or the Right.

In 1996, the Miller Center for Public Affairs at the University of Virginia assembled an eminent bipartisan panel to consider “problems concerning the process of appointing federal judges.” The group included former Senators Howard Baker (R-TN) and Birch Bayh (D-IN) as well as former White House Counsels Lloyd Cutler, who served Presidents Carter and Clinton, and Fred Fielding, who served President Reagan.

The panel’s conclusion speaks directly to the issue at hand.

It is most important to appoint judges who are learned in the law, who are conscientious in their work ethic, and who possess what lawyers describe as “judicial temperament.” That term, though difficult to define, essentially describes a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result. The law should be fairly read and applied, irrespective of the judge's personal views as to its wisdom. … The Commission believes that it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science, it also serves to weaken public confidence in the courts. (Emphasis added)

So what should the judicial selection process look like?

In Federalist No. 78, Hamilton writes,

There can be but a few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making proper deductions for the ordinary depravity of human nature, the number must be smaller of those who unite the requisite integrity and the requisite knowledge.

With this in mind, the ideal judicial selection process ought to be relatively straightforward. The President should choose a nominee from among the best and the brightest in the legal field. As it does now, the FBI should complete a thorough background check to ensure that all of the proper deductions for “depravity of human nature” are made. The Senate should employ its resources to verify the nominee’s intellect and qualifications and to ensure that he or she is not benefiting from favoritism, cronyism or nepotism. After these processes are complete, the Senate should hold a simple up-or-down vote on confirming the nominee. If the nominee is distinguished and without difficulties, he or she should be confirmed. If not, then the Senate should exercise its constitutional duty and reject the nomination.

Meanwhile, back in the real world…

As pleasant as this ideal process sounds, one would have to be living high in the clouds to believe that it could ever happen.

Indeed, the aforementioned Professor Tribe argued at Senator Schumer’s 2001 hearing that “Some might be tempted … to imagine that, if we could only wave a magic wand and remove all ideological considerations from judicial selection … somehow the Olympian ideal of a federal judiciary once again above politics and beyond partisan reproach could be restored. For several reasons, that is a dangerous illusion.”

Tribe goes on to argue that practical considerations make it impossible to achieve the ideal. But Tribe’s practical objections really reveal nothing more than his concern that his preferred outcomes won’t prevail. After asserting that the Supreme Court is “tilted in a rightward direction,” Tribe declares that “anything less than a concerted effort to set the balance straight would mean perpetuating the imbalance that gave us not only Bush v. Gore but the myriad of decisions … in which the Court thumbed its nose at Congress.” In other words, Tribe is saying that because the Court didn’t do what he wanted, there must be something wrong with it.

Tribe’s underlying point ― echoed by Professor Sunstein and others ― is that the Senate should force ideological balance and thus, moderation, on the judicial system through an aggressive use of its “consent” power. But their view of moderation is an activist bench ready and willing to embrace the outcomes that Professor Tribe seeks. And “moderation” is nothing more than a political objective. So any attempt to force moderation is to pursue that political goal with political means. Tribe’s effort demonstrates that introduction of politics into the judicial equation only promotes more politics while undermining the law.

At the same time, Tribe raises another point that merits contemplation. Why should the Senate refuse to consider outcomes and ideology when the President will almost certainly nominate judges who conform to his judicial philosophy? The answer, however, is fairly straightforward: for better or for worse, the Constitution grants the President the power of selection and thus, as Federalist No. 76 instructs, though the Senate may reject the President’s nominee, that one will only be replaced by another of the President’s choosing. “The person ultimately appointed must be the object of [the President’s] preference, though perhaps not in the first degree.”

This gives little comfort for those who believe constitutional understanding is a black and white, right or wrong question. For instance, many conservative friends believe strongly that Justices Antonin Scalia and Clarence Thomas view the Constitution “correctly,” in that they try to view its meaning as it was originally understood. How to explain, then, that the two Justices disagree on more than a few questions? Indeed, no survey of the most learned scholars and legal experts would ever find two who are in complete agreement on every facet of the fundamental document of American law.

So instead of searching for the “right” answer, we are back to asking our judges to seek the “best” possible ruling based on an objective, well-reasoned understanding of law while putting aside personal biases. But identifying judges to provide that service is, though challenging, at least achievable. That’s not to say the President shouldn’t concern himself with finding judges who rely on the plain meaning of the Constitution while resisting the temptation to invent novel constitutional theories. He should. As made clear earlier, only when our legal understanding is based firmly on the clear meaning of the Constitution can there be any result that isn’t by its nature political or, even worse, a mere reflection of a judge’s own conscience.

Just as in every other facet of his position, a president’s ability to make this choice effectively will vary from one to the next. “We the People” will not always be pleased with his choices. But if our objections are strong, we have recourse every four years.

On the other hand, if we allow politics to continue to overwhelm our judiciary and undermine popular respect for the rule of law, we have no recourse at all. Slowly, but steadily, chaos will surely reign.

So America should once again embrace optimism and strive for a better process. We should continue to insist that our elected representatives in the Senate stop treating judicial nominees like political footballs. We should urge them to confine their questioning to qualifications and background if they must question at all. And we should encourage our President to keep finding and nominating the best and brightest to the federal bench. He’s certainly done so with Judge Roberts.

August 11, 2005
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