SYMPOSIUM Q: Should the Senate Take Ideology into Account in Judicial Confirmations

INSIGHT magazine ^ | February 4, 2002 | YES: Ralph G. Neas *** NO: Roger Pilon

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YES: The ideology of nominees for the federal judiciary matters more now than ever.

By Ralph G. Neas

The future of the federal judiciary is the most important domestic issue facing the Bush administration, the U.S. Senate and the nation. Packing the federal judiciary with ideologues is the top priority of right-wing activists, including those within the administration. This year, as the Senate considers dozens of President George W. Bush's nominees to the federal courts, we will have the opportunity for honest and vigorous debate about the importance of nominees' ideology — not their politics, but their judicial philosophy — toward the well-being of our nation and our Constitution.

The outcome of this historic national debate will affect the daily lives of Americans, their children and grandchildren for decades. Specifically, the outcome will determine whether many of the civil-rights advancements of recent decades will survive or be reversed; whether every American has a right to privacy; whether women will have a right to reproductive choices; whether many environmental protections will remain in place; and whether American workers will enjoy strong protections for their safety and health.

In spite of the increasingly heated rhetoric from pundits and politicians, the Senate's role in the judicial-confirmation process is not to rubber-stamp the president's nominees. The Constitution gives the Senate, through its advice and consent responsibilities, a coequal role with the president in confirming lifetime appointments to the federal bench. In fact, it was not until a last-minute compromise at the Constitutional Convention that the president was given any role in naming judges to the courts.

The Senate has considered judicial philosophy as an element of its advice-and-consent role to varying degrees throughout its history. In contrast to modern right-wing mythology that Robert Bork was the first judicial candidate to face careful scrutiny, including his judicial philosophy, his rejection was part of a tradition as old as the republic. George Washington had his nominee for chief justice of the United States rejected in 1795. Between 1795 and 2001, approximately 20 percent of the nominees for the high court were rejected.

One more note on the subject of Bork mythology: Right-wing pundits have tried to turn "bork" into a verb meaning an unfair personal attack on a nominee. But the Bork nomination was not about his personal life or politics. Indeed, the televised deliberations around his nomination and judicial philosophy probably were the nation's finest debates about the history and meaning of the Constitution.

We need similarly vigorous debates in the coming months and years because constitutional rights and liberties are in their most precarious situation since the Bork nomination. During his presidential campaign, George W. Bush said that Justices Antonin Scalia and Clarence Thomas would be his models for Supreme Court appointments. People for the American Way analyzed every concurring and dissenting opinion by Scalia and Thomas. The resulting report, Courting Disaster, concludes that under a Scalia-Thomas majority — just one or two justices away — Roe v. Wade, of course, would be reversed, but so would more than 100 other precedents covering privacy rights, religious liberty, environmental protection, worker safety and health, civil rights and a host of other important issues.

In many of these areas, unfortunately, there already has been significant erosion. Since 1995, a conservative majority on the high court through a series of rulings has resurrected the "states'-rights" doctrine that many of us believed had been put to rest for good in the 1960s. If additional right-wing ideologues were placed on the Supreme Court, it would create a situation similar to the 1890s through 1937, when right-wing justices invalidated progressive legislation approved by Congress and signed by the president.

This is not hyperbole. Many right-wing legal analysts state clearly that they seek the rollback of the New Deal and the rejection of the constitutional framework that was embraced by Republican and Democratic presidents and Supreme Court justices through much of the 20th century.

This is the crux of the judicial-ideology debate. Were the last seven decades of constitutional, legal and social-justice progress a strong foundation for moving forward as a great nation into the 21st century? Or were they based on a wrongful departure from a restrictive constitutional interpretation that placed limiting the role of government as its highest value?

These discussions should not be limited to Supreme Court nominees. Given the handful of cases accepted for high-court review, thousands of federal appeals-court rulings are in effect the final word on the law and Constitution for millions of Americans. Throughout our history, there have been far fewer confirmation battles over judges nominated to the lower federal courts, either the district courts or the circuit courts of appeals. Indeed, progressives opposed only a small handful of such judges during the 12 years that presidents Ronald Reagan and George H.W. Bush filled the courts with ultraconservative nominees.

As my friend and mentor, Republican former senator Edward W. Brooke of Massachusetts, has observed, the lower courts tend to respond to presidential elections like a slow-moving pendulum, moving somewhat to the right under Republican presidents and somewhat to the left under Democrats.

But the right wing has totally shattered that tradition. Seeing the federal courts as the key to enshrining their view of the Constitution, right-wing senators put their hands on the pendulum. They began to build an unprecedented partisan and ideological blockade around the federal appeals courts, especially after Republicans regained control of the Senate in the 1994 elections.

The blockade was remarkably successful. In fact, the Senate stopped 35 percent of President Bill Clinton's nominees to the appeals courts from 1995 to 2001. Not one of them even got a vote! Forty-five percent of Clinton's appeals-court nominees were not confirmed in the Congress in which they were nominated. Some Clinton-nominated judges waited as long as four years without receiving a hearing. Even current White House counsel Alberto Gonzalez has conceded the unfairness of the Clinton-era blockade when he told CNN in August that the treatment of those nominees was wrong and improper.

To their credit, Senate Majority Leader Tom Daschle (D-S.D.) and Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) have not adopted a strategy of retaliation since Vermont Sen. Jim Jeffords' midyear resignation from the GOP that gave Democrats control of the Senate. Indeed, Daschle and Leahy have demonstrated remarkable restraint, fairness and diligence. In spite of a late start (thanks to Republican stalling on the Senate reorganization) and the extraordinary demands placed on the Senate Judiciary Committee by the terrorist attacks, 28 federal judges were confirmed in the last half of 2001. These 28 confirmations are almost twice the number confirmed during the entire first year of the first Bush administration (1989) and one more than the number confirmed during the first year of the Clinton administration (1993). The pace is dramatically quicker than when Republican senators deliberately delayed the process from 1995 to 2000. The Senate under Democratic control has been reducing the number of unfilled vacancies, a clear contrast to the Republican Senate's deliberate policy of perpetuating them.

The remarkably harsh personal attacks orchestrated by some Republican senators and right-wing activists inside and outside the administration against Daschle and Leahy have been both deceptive and unfair. The real goal of these attacks is to complete through bluster and intimidation the process accelerated by the blockade of Clinton's appeals-court nominees. Today, judges appointed by Republican presidents control seven of the 13 circuit courts. If all President Bush's appeals-court nominees are approved, 11 of the 13 will be controlled by Republican-nominated judges. And by the end of this presidential term, Republican nominees likely will control all 13 federal appeals courts — a problem particularly if nominees are chosen for their commitment to right-wing judicial activism. The system of checks and balances our Founders created is not well-served by such one-sided ideological domination of the entire federal judiciary.

Given the extent of the vacancies perpetuated by the GOP blockade of 1995-2001 and the devastating consequences of a federal judiciary totally dominated by right-wing ideologues, it is critically important that the Senate carry out its constitutional responsibility carefully to scrutinize nominees, especially to the appellate courts. And it is appropriate and essential that the Senate reject right-wing ideologues.

We are facing an unprecedented situation that calls for an unprecedented bipartisan solution. President Bush must work closely with senators from both parties to bring forward more moderate judges who can receive genuine bipartisan support, and the Senate should continue to give priority to processing those nominations.

Regarding the controversial appeals-court nominations, the debate is not about partisan jockeying or trying to make the president look bad. It is about the role of government and whether the last seven decades of bipartisan legal achievements will survive.

Right-wing activists believe Supreme Court justices should admit the "mistakes" of the last 65 years and overturn many historic precedents.

I look with pride, however, at a changed and dramatically improved America, with much more opportunity for all citizens, more tolerance and more fairness. And I daily cherish our Constitution, this living document in which our Founders crafted general principles that are subject to interpretation and to expansion within appropriate limits.

I believe that starting in 1937 our nation has experienced a second American revolution in which many of the dreams and promises embodied in the Declaration of Independence and the Constitution have been given a significant measure of reality. For America, this is the moment to decide. Will we decide to turn back the clock to 1932, or even to the 19th century? Or will we decide to move forward into the 21st century with our rights and liberties intact?

Neas is president of People for the American Way, a 500,000-member national nonprofit group. He has received several awards for championing civil-rights causes and has been interviewed regularly on network- and cable-TV talk shows.

NO: Since judges apply law, not make it, the Senate's concern should be with judicial temperament.

By Roger Pilon

Everyone knew that the 2000 presidential election would be a battle for the courts. When George W. Bush finally won the election following the Supreme Court's decision in Bush v. Gore, many Democrats, outraged by the ruling, simply dug in their heels. They continue the battle today in the U.S. Senate by imposing an ideological litmus test on Bush's nominees for the federal judiciary. The result is an unprecedented confirmation stall. If they continue, they'll compromise the work of the courts and the rule of law itself. In the confirmation process, only the Constitution's ideology of individual liberty and limited government should count, along with the nominee's temperament in securing those principles.

To get a feel for how political the battle for the courts has become, recall the tone of a year ago, just after the Supreme Court brought the Florida long count mercifully to a close. The nation's law schools, overwhelmingly Democratic if not leftist, exploded in a torrent of anger. In January some 550 professors from 120 schools ran a full-page ad in the New York Times decrying the high court's majority for having acted not as judges but as "political proponents for candidate Bush." Through op-eds, articles, books and TV appearances the venom poured forth. Harvard Law's Randall Kennedy charged that the majority had acted "in bad faith and with partisan prejudice." Yale Law's Bruce Ackerman went so far as to urge Senate Democrats to reject every judicial nominee the illegitimate president offered up.

They haven't done that, but they're certainly in a confirmation stall. Since Bush took office there have been 128 vacancies in the 862-member Article III courts. By year's end Bush had nominated 65 candidates to fill those vacancies; only 28 had been confirmed. As a result there are 100 empty seats, 39 of which are judicial-emergency vacancies according to the Administrative Office of the U.S. Courts. Half the seats on the 6th Circuit today are empty. In fact, at the circuit level the stall is egregious. Only six of Bush's 29 U.S. circuit-court nominees have been confirmed, and two of those were Clinton holdovers renominated by Bush as a gesture to the Democrats. More telling still, 11 of those nominees have been hanging since May, never having had a hearing, much less a vote.

And we are not talking here about political hacks. In fact, the Bush appellate-court nominees who've waited the longest include some of the most accomplished lawyers in the nation. John Roberts Jr., who clerked for then-associate justice William H. Rehnquist on his own way to becoming the nation's principal deputy solicitor general, has argued numerous cases before the Supreme Court. Michael McConnell, who clerked for Justice William Brennan, is a gifted legal scholar who has taught at Harvard and the University of Chicago and now teaches at the University of Utah. Miguel Estrada came to the United States as a teen-ager speaking virtually no English. Yet he graduated Phi Beta Kappa from Columbia College and at the top of his Harvard Law School class before clerking for Justice Anthony Kennedy. Like Roberts and McConnell, he too served in the Justice Department as a federal prosecutor in New York and an attorney in the solicitor-general's office in Washington.

Why have such stellar nominees been left to hang since May without so much as a hearing? Their problem, it seems, is that they can't pass the Democrats' ideological test. Those are some of the same Democrats who, without any evidence, condemned President Ronald Reagan for his alleged use of a pro-life litmus test. What is plain now is that it's not a litmus test that troubles those Democrats, as they said then, but the content of such a test. They'll confirm only those who share their ideology.

And what is that ideology? That's the most disturbing and complicated part of the equation. Let's start with the basics, then go to the history of the matter. The ideology of a judge — whether he's a capitalist or a socialist, for example — shouldn't matter unless he invokes it as a judge. A judge, after all, is supposed to apply the law, not make it. Lawmaking is the business of the legislative branch or, more basically, of the people when they draft, ratify and amend their Constitution. To be sure, a judge often has to interpret that constitutional or statutory law. But that's still not making law. It's "finding" and then applying law that others already have made.

If Senate Democrats want to take a nominee's ideology into account, however, it must be because they believe that ideology either does or should play a role in a judge's ruling. No one doubts that it does to some extent. Even judges, after all, are human. But do we want to encourage the view that ideology should play a role in judging? If so, what becomes of the rule of law? If judges can make up the law as they go along, why have a legislature? Indeed, why have a Constitution? Let's just ask judges to "do the right thing."

Plainly, history teaches that we need the rule of law and judges honestly to apply it. Yet that's just what's at issue in the current debate, although the roots of the debate go back a 100 years. We got a glimpse of that last June when Sen. Charles Schumer (D-N.Y.), chairman of the Senate Judiciary subcommittee on Administrative Oversight and the Courts, wrote an op-ed for the New York Times, just before holding hearings on whether ideology should matter. He concluded it should, to no one's surprise. Although Schumer made his immediate aim clear — to keep conservatives such as Justices Antonin Scalia and Clarence Thomas off our courts — in doing so he hit upon the basic issue. "The Supreme Court's recent 5-4 decisions that constrain congressional power," he wrote, "are probably the best evidence that the court is dominated by conservatives." Thus, "tilting the court further to the right would push our court sharply away from the core values held by most of our country's citizens."

Never mind, apparently, what the law might say about the scope of congressional power, or property rights, or anything else for that matter. What counts, rather, is our citizens' "core values."

That glimpse of the Democratic agenda was embellished two months later, just prior to another Schumer hearing on ideology, when party elder Joseph Califano Jr. placed an op-ed in the Washington Post. Complaining that gridlock and big money long have kept Congress from legislating on a wide range of urgent matters, Califano noted that concerned citizens now go to the courts, making judges "increasingly powerful architects of public policy." Indeed, "who sits in federal district and appellate courts is more important than the struggle over the budget" or virtually anything else today in Washington. For we've all learned, he continued, "that what cannot be won in the legislative or executive [branches of government] may be achievable in a federal district court where a sympathetic judge sits." Thus, the Senate needs to step in to decide, on explicitly ideological grounds, who will be "setting national policy" from the bench.

There you have it. Everything is politics. Nothing is principle. Judges don't apply law. "Sympathetic judges" make law, like so many legislators, "setting national policy" in the process. Interestingly, the Constitution, which spells out the actual separation of powers, is mentioned not once in Califano's piece. Doubtless, it's an embarrassment, utterly inconsistent with his picture of a thoroughly politicized judiciary.

Yet for all that, Califano's picture is too close to the truth to be ignored. He's put his finger on just why the confirmation battles today loom so large. What he's failed to do, however, is explain, much less justify, this flight from constitutional principle. To get at that, we have to go further back.

The main origins of the problem are in the Progressive era, when the social engineers of the time sought often to do through government what the Constitution plainly left to the private sector. Things came to a head during the New Deal when a frustrated Franklin Roosevelt attempted to pack the Supreme Court. The scheme failed, but FDR won the day when a cowed court began rethinking the Constitution, effectively eviscerating constitutional limits on federal power. The deferential court that emerged has been called "restrained" but, in truth, it was an "activist" court — finding congressional and executive powers nowhere granted, ignoring rights plainly in the Constitution. And it led to even more activism.

The shift had two aspects. First, with the political branches now free to run our lives, it was only a matter of time before their ever-expanding schemes ended up in the courts to sort out the mess Congress had made. But those who promoted such schemes didn't always win in the political branches. Thus, second, when that happened, they ran to the courts, trying to win from "sympathetic judges" what they'd failed to win politically. Regrettably, the Warren and Burger courts, already deferring to the political pursuit of "social justice," were only too willing to step into the fray, thinking themselves a legislature of nine.

The Rehnquist court, by contrast, has taken modest steps during the last decade toward resurrecting constitutional principles of limited government. However modest, those steps have alarmed liberal Democrats. They can't imagine anyone thinking that Congress' powers are limited; that if an end is worthy, Congress might still not have the power to pursue it; that James Madison might have meant it when he said that the powers of the new government would be "few and defined."

Thus, when Democrats seek today to subject judicial nominees to an ideological litmus test, they're continuing the work of an earlier generation of their party. The test they would impose has little to do with law or with the ideology of the Constitution — a document understood for 150 years as having instituted limited government. Rather, it concerns whether the nominee subscribes to the constitution invented by the New Deal high court, to allow the modern welfare state to bloom. That version, which encourages judges both to ignore limits on power and to find rights nowhere to be found, requires a judge to be sensitive to "evolving social values." Having earlier politicized the Constitution, Democrats now are bent on politicizing the judiciary. If they succeed, it will mark the triumph of ideology and the death of law.

Roger Pilon is vice president for legal affairs at the Cato Institute in Washington and director of Cato's Center for Constitutional Studies.

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