Posted on 10/11/2005 8:42:19 AM PDT by SJackson
TESTIMONY OF C. BOYDEN GRAY BEFORE THE SENATE JUDICIARY SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS AT A HEARING ON "SHOULD IDEOLOGY MATTER?: JUDICIAL NOMINATIONS 2001."
Good morning, Mr. Chairman. Thank you for this opportunity to appear today. If the goal of today's hearing is to answer the question, "Should ideology matter?" I can answer in one word: No. The only legitimate question on this subject -- from the White House, the Senate, the Judiciary Committee, or an individual Senator -- pertains to the proper Constitutional role of a federal judge. The question is very simple: "What is the proper role of a federal judge, or of the federal judiciary?" If the nominee's answer is "to interpret and apply the law," or words to that effect, then you have a nominee who understands the limited role of a judge. If, on the other hand, a nominee views the judiciary as a vehicle for favoring particular interest groups or particular outcomes, then the nominee is unfit to be a judge and should consider running for legislative office instead.
Historically, judicial nominees have not been asked about their views. There simply were no hearings on judicial nominees until 1925. Even then, the hearings were perfunctory affairs for decades. When Byron White was nominated to the Supreme Court in 1962, the Judiciary Committee asked him eight questions and the hearing lasted 15 minutes.
In 1981, Senator Kennedy defended Sandra Day O'Connor's refusal to answer questions about her views on abortion. He said, "It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy."
As I said earlier, I think there is one legitimate test of judicial philosophy. But if the Senate - or the White House - asks overly specific questions, they threaten the independence of the federal judiciary by seeking advance commitments to rule certain ways in particular cases. In fact, the questionnaire that the Judiciary Committee sends to judicial nominees before its hearings makes clear that this is an unacceptable practice. The questionnaire asks, "Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such case, issue or question? If so, please explain fully."
Very early in the first Bush administration, when I was White House Counsel, I met with Judiciary Committee Chairman Biden and Senators Kennedy, Hatch and Thurmond. Senators Biden and Kennedy made it very clear, with Senators Hatch and Thurmond nodding in agreement, that a nominee would not be confirmed if the White House were caught asking questions about specific issues or cases.
Both Republicans and Democrats have been accused of using unfair, politically driven litmus tests in nominating or confirming judges. The criterion I have outlined is the closest thing to a proper litmus test because it only considers whether the nominee understands the proper Constitutional role of an unelected federal judge, which in turn indicates whether he or she understands the American system of self-government. In our democracy, decisions on major political issues should be made by the people and their elected representatives, not by unelected judges. This has been the prevailing and respectable point of view since our nation's founding. The alternative view -- that judges can make decisions freely, without being constrained by the language of the Constitution or statutes -- is an extreme position shared by almost no one. That's the view that should be described as extremist, because it lets judges do whatever they want, regardless of what the law says, and that should frighten Americans on both ends of the political spectrum. As Thomas Jefferson cautioned, if judges were allowed to interpret the law to be what they wish, the Constitution would be "a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."
Some organizations and individuals have urged the Senate to just say no to judges nominated by a President of the other party. Before President George W. Bush was even inaugurated, before a single judge had been named or nominated, one group said it would fight so hard against his judicial nominees that "it will be scorched earth. We won't give one lousy inch." That hasn't been the historical approach, and I urge you to reject this political warfare. It threatens judicial independence at its most vulnerable and fundamental core.
During the twelve years of the Reagan-Bush era, Democrats controlled the Senate half the time. Yet the Senate confirmed 382 of President Reagan's judicial nominees and 191 of President Bush's nominees. During Clinton's presidency, Republicans controlled the Senate for six out of eight years, but they confirmed 377 of President Clinton's judicial nominees. It's safe to say that Republicans disagreed with the political preferences of many of these judges, but they voted down only one judge. And that is appropriate; rejections should be rare. Alexander Hamilton said in The Federalist Papers that judicial nominees should be rejected only for "special and strong reasons."
Ideology and party identification have never been very good benchmarks for ascertaining how a judge will decide future cases in controversial areas. There are seven Republican appointees on the current Supreme Court. Two of them are among the most liberal justices of the century, and most of them have supported the Court's decisions upholding Roe and striking down state partial birth abortion statutes. One such appointee -- Chief Justice Rehnquist -- supported the Miranda decision, and at least two conservative members of the bench render broad definitions of the procedural protections under the Fourth Amendment and are inclined to support greater judicial scrutiny of administrative agency action. Presidents, no doubt, try to identify nominees who will defend the White House's prerogatives, but history proves that such efforts are often pointless. Justice Oliver Wendell Holmes, for example, ended up thwarting the antitrust policies of the president who nominated him -- Theodore Roosevelt. And, finally, justices do not always live up to the "liberal" label they receive. Toward the end of his career, the justice for whom I clerked -- Chief Justice Earl Warren -- invoked federalism principles that might be considered "conservative" today.
But even if you reject the proposition that ideology is not a good gauge, ideological inquiries are perilous because of the message they send to the public at large. If Senators focus on the results or outcomes in particular, people will simply view the judiciary as another political institution. Under this setting, law is just politics by other means.
One commentator recently has suggested that the country needs some activist judges on the bench to maintain some balance. After all, the last election was close, so the courts should "reflect the nation's profound ambivalence." Well, I don't know if we want to appoint profoundly ambivalent judges. After all, it's not uncommon for the White House and the Senate to be in the hands of different political parties, and we've never apportioned judicial seats on the breakdown of the vote in the last election. The Constitution assigns the appointment power to the President, and I think it's clear that the advise and consent role of the Senate does not include a pre-nomination function.
In conclusion, Mr. Chairman, the key criterion for judging a potential judge is not ideological, but philosophical and Constitutional: Does the nominee have the integrity to recognize the limited role of a judge and leave legislating to the legislators?
Thank you.
The Appointing Power of the Executive (Federalist No. 76 - Alexander Hamilton)
Supporting Judges Who Uphold the Law--Judicial Reform: Courts That Work, Laws That Make Sense
To Advise and Consent: The Senate's Role in Evaluating Judicial Nominees
Bartiromo: You were confirmed by the Senate by 98 to 0. Are you concerned that the Supreme Court nomination process has become too politicized? Could you be confirmed today?
Justice Scalia: I don't know, but I wouldn't want to go through it today [laughs]. I’ll tell you that much. It has become politicized. But the reason it has become politicized is that the Supreme Court has been making more and more political decisions that are really not resolved by the Constitution at all. It took a while for the public to figure out what was going on. I think what has happened is that everybody now understands that courts can make tremendously significant social decisions — whether there should be same sex marriage, whether there should be a right to die, whether there should be a right to abortion, all of those things. None of which, you know, to tell the truth, was covered by the Constitution, but the court can say it is and that gives the court a good deal of political power.
The difference between should be be and is.
It shouldn't matter but it does matter because judges take power that isn't rightfully theirs to take.. I don't know the answer at this point.
One answer, though not completely reliable, people do change, ...nominating only judges who have demonstrated respect for the Constitution and the democratic processes of our republic, Republican Platform, 2004
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