Posted on 10/11/2005 8:20:27 AM PDT by SJackson
The arrival of a new administration in Washington is often accompanied by renewed attention to fundamental questions about the proper workings of government. In recent months, one of the foremost debates has been about the process of nominating and confirming federal judges. One issue in the debate involves the Senate's role and the standards by which a judicial candidate should be evaluated and subsequently confirmed or rejected.
At stake is not only the composition of the federal judicial system but also its very legitimacy, for a movement has emerged that seeks to politicize the judiciary. Advocates of this movement claim the Constitution and history as their allies, yet their arguments betray these allies. If successful, this movement will pave the way for the courts to be transformed into little more than an extension of the legislature. Such an outcome would be disastrous because, as the great political theorist the Baron de Montesquieu writes: "There is no liberty if the power of judging be not separated from the legislative and executive powers."[1] To reassert the proper role of the Senate in the confirmation process as established in the Constitution by the framers is necessary.
Alexander Hamilton wrote extensively about the federal judiciary in the Federalist Papers, which essentially serve as the Founders' commentary on the Constitution. No other source better illustrates the framers' original intent. In Federalist 78, Hamilton writes that the purpose of the judiciary is "to secure a steady, upright, and impartial administration of the laws."
The framers made it clear that the judiciary is meant to be the weakest branch of the government. "It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements."[2] This is commonly understood to mean that, under a system of enumerated powers, the courts have not been granted the authority to create new laws or perform any other acts delegated to the legislature. Judge J. L. Edmondson of the Court of Appeals for the Eleventh Circuit affirmed this last year in the highly publicized Gonzalez v. Reno:
The Supreme Court has instructed us with these words: Federal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches. . . . As policymakers, it is the duty of the Congress and of the executive branch to exercise political will. Although courts should not be unquestioning, we should respect the other branches' policymakers' powers. The judicial power is a limited power. It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law.[3]
Furthermore, the courts cannot create any new extra-constitutional "rights" and "values" from constitutional fabric and then treat these as if they are of constitu-tional authority. Neither can they reshape procedural law to expand these "rights" and "values." Only the legislature, through the established procedure of constitutional amendment, is authorized to expand constitutional rights.
The legislature is also limited, as the judiciary has been given the duty to declare as void and "unconstitutional" all legislative acts that contradict the Constitution. Judges must not abuse this power, however. It does not permit them to strike down a law merely because they do not favor it. This, too, is judicial activism. Judge Diarmuid O'Scannlain of the Court of Appeals for the Ninth Circuit wrote, "Federal courts must act with the greatest circumspection when we override a state's democratic processes to strike down its enactments as unconstitutional."[4]
Neither should a judge interpret the Constitution according to his personal ideology in order to strike down an act of legislature. Thomas Jefferson recognized the danger this posed, saying that it would reduce the Constitution to "a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."[5] "A judicial activist is a judge who interprets the Constitution to mean what it would have said if he instead of the Founding Fathers had written it," wrote the late Senator Sam Ervin.[6] At a hearing of the Senate Judiciary Committee in June 2001, Senator Orrin Hatch stated:
When federal judges deviate from the written law, and decide cases based on their own policy preferences or views of what is just or right, they in effect make up laws of their own despite the lack of legitimate authority for doing so. When judges twist the language of legislation to enact the policies they prefer, they usurp the rule of the legislature and destabilize the balance of power. Even worse, when they read their own preferences and political agenda into the Constitution, judges directly thwart the will of the people. . . . This is judicial activism, and it represents a direct attack on the democratic principles that are central to our constitutional system.[7]
Judicial activism is also intrinsically linked to the politicization of the judiciary. The judiciary is politicized primarily when constitutional interpretation is not rooted in the text, context, or intent of the legislature but instead is derived from the political and cultural ideology of the judge. Some manifestations of this are:
• Judges who empower themselves to provide exceedingly broad relief to abstract persons with vaguely defined harm instead of ruling based on the specific facts of the case before them. • Judges who state that the ultimate purpose of the Constitution is to promote "personhood" and "the realization of man's potential and value" as defined by each individual. • Judges who rest the Constitution on vague fundamental "principles" and "rights" like "freedom" and "equality."
The Constitution has placed the authority for making judicial appointments primarily in the hands of the president, with the "advice and consent" of the Senate. The nomination process, however, has become the battleground for politicizing the judiciary. Liberal legal scholars have advanced a variety of questionable claims. At the root of these claims is an effort to introduce a litmus test of partisan political ideology into the nomination process.
Is the Current Judiciary Partisan?
The federal bench is, according to Lawrence H. Tribe, "tilted overwhelmingly in one direction."[8] In the words of Marcia Greenberger, the bench has exhibited "extreme views."[9] The truth of the matter is that the federal judiciary is rather evenly split between Republicans and Democrats, and most of the judges planning to retire soon are Republican.[10] More importantly, such wordplay ultimately has little place in meaningful debate. As Professor Stephen Presser of the Northwestern University School of Law says, "in politics the 'moderates' are generally you or the people you agree with, while your opponents are always 'extremists.'"[11]
Another claim is that the current Supreme Court has been abusing its power by striking down an inordinately large number of laws, thereby threatening the rights and liberties of all Americans. In particular, liberals attack Justices Antonin Scalia and Clarence Thomas, depicting these men as closed-minded right-wing radicals who seek to destroy the Constitution by eliminating affirmative action and abortion and breaking down the assumed "wall of separation" between church and state.
Many legal scholars have refuted these unfounded allegations. Professor Eugene Volokh of the UCLA School of Law notes: "The Supreme Court's recent jurisprudence, including the views of the Court's more conservative members, has been firmly within the mainstream of American constitutional thought" and "the Court's decisions follow a longstanding tradition, and are consistent with the great majority of the precedents."[12]
That the Rehnquist Court has struck down some legislation cannot be denied. Critics ignore that in recent years, however, Congress has been passing legislation that is far more constitutionally sensitive than ever before. The Court has also struck down legislation in which Congress exceeded its constitutional authority under Article 1. The Court has been protective of states' rights, as shown by its tendency to strike down federal laws which usurp powers traditionally held by the states under the Tenth Amendment and/or under their unenumerated powers. This is completely consistent with the separation of powers mandated by the Constitution and it supports the longstanding belief that such matters are best left to the governments closest to the people.
In any case, to describe the Rehnquist Court as "conservative" is inaccurate. The Court has struck down a flag-burning law; the Virginia Military Institute's exclusion of female students; Colorado's Amendment 2, which precluded "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their homosexual, lesbian or bisexual orientation, conduct, practices or relationships;" and a state ban on partial birth abortion.[13] This Court has been no enemy of even the most liberal views of liberty.
As for Justices Scalia and Thomas, the smear tactics used against them do not hold up under scrutiny. In fact, these justices have shown themselves to be faithful to the text of the Constitution and the intent of the framers in accordance with Alexander Hamilton's judicial philosophy.
Liberals speak as though affirmative action, the right to have an abortion and the "high wall" of separation between church and state are mentioned explicitly in the Constitution and should be treated as "fundamental" rights. While Scalia and Thomas have been vilified for their views on these issues, the reasoning behind their views is rarely mentioned. Professor Stephen Presser of the Northwestern University School of Law has outlined their reasoning as follows:
• Affirmative action is, in effect, discrimination on the basis of race and thus goes against the goal of the Fourteenth Amendment, which was to insure a color-blind institution. • For centuries, Americans have believed that religious faith is the foundation of American government and life. While the First Amendment prevents the federal government from establishing a national religion, it allows state and local governments to promote the policies they deem proper. • The issue of abortion is not addressed by the Constitution, directly or indirectly.
These views are not radical or unconstitutional. Justices Scalia and Thomas do not hold them because of a biased commitment to specific political results, for they know and have demonstrated that their personal political beliefs are irrelevant to their legal reasoning. Rather, the justices hold these views because of their commitment to a longstanding judicial philosophy that is increasingly being violated. While Court precedent may not be on their side in many cases, that precedent does not alter the fact that the text and original understanding of the Constitution are on their side.
It cannot reasonably be said, as some would suggest, that the current judiciary has demonstrated an overall ideological tilt significantly affecting the rulings it has released. Rather, the threat to justice occurs when an ideological tilt in the judiciary destroys impartiality. Fortunately, many judges exercise self-restraint for the sake of the impartial administration of the law as prescribed by the framers. Justice Chet D. Traylor of the Louisiana Supreme Court exemplified such restraint in his opinion in Louisiana v. Smith:
The Louisiana Constitution is the highest law by which the government of this state was established. As such, our constitution is not be subject to judicial amendment to express whatever a majority of this court happens to conclude at any given time is the more enlightened viewpoint on a particular controversial issue. If our constitution can be judicially amended in such a manner, that constitutes government by this court, rather than government through a constitutional system of which this court is a separate and equal branch. To hold otherwise would be to allow any and all disaffected groups unable to obtain legislative redress need only convince a majority of this court that what they seek is an implicit "right" afforded by the Louisiana Constitution. Our constitution wisely provides for separation of powers, and authorizes the legislature to make public policy determinations in this area.[14]
What Role Should Political Ideology Play?
President George W. Bush has expressed his intention to nominate people who share the judicial philosophy of Antonin Scalia and Clarence Thomas: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench."[15] This has sent liberals scrambling to demand that the personal political views of judicial candidates be given substantial consideration by the Senate and used to construct a "balanced" judiciary to realign the current "tilted" one. But as Clint Bolick, litigation director of the libertarian Institute for Justice, states:
Balance is not what the left-wing advocacy groups are after. They want to post a sign outside the door of the federal courthouse reading, "No conservatives need apply." They want [the] Senate to do their bidding, denying confirmation to anyone who does not share their activist agenda. That these groups are themselves anywhere near the "mainstream" of public opinion is laughable.[16]
Liberals argue that, since the president will select nominees who share his personal views, the Senate has a duty to put a check on his nominations. Once again, though, this politicizes and degrades the judiciary by sending the implied message that judges are biased and make decisions based on their personal will instead of the rule of law. Americans must not accommodate this view by resigning themselves to it; rather, Americans must resist it by strongly asserting the requirement that judges selflessly set aside their political philosophy when rendering judgment.
In The Federalist Papers, Hamilton admonished that "the person ultimately appointed must be the object of [the president's] preference" and that the Senate should only refuse to confirm a nominee for "special and strong reasons." In fact, Hamilton states that the Senate's involvement is meant to "have a powerful, though, in general, a silent operation," in deep contrast to the loud objections directed towards most of the president's nominees.[17]
What might some of these "special and strong" reasons be, to which Hamilton alludes? He writes that selecting "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity," or "possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure" are grounds for dismissal of said characters.[18] Nothing about "personal political views" can be found here. Ideology might render a candidate an "unfit character," but the rest of Hamilton's writings consistently base character on judicial philosophy, not political ideology.
Hamilton's statements notwithstanding, the arguments for probing political ideology face a number of other problems. For one, ideology has historically been shown to be less-than-reliable as an indicator of the future decisions of judges. Republican presidents have nominated many of the Court's most liberal justices, including William J. Brennan Jr. and John Paul Stevens. President Nixon nominated Harry Blackmun, author of Roe v. Wade. Though presidents may think they are nominating judges who will support them, they often lose this wager. Liberals certainly cannot argue that President Bush is ignoring the will of the people, since a New York Times poll found that the majority of Americans believe that his nominees will be about right.[19]
Perhaps the greatest problem with liberal tactics is not that they are merely misguided. They are actually harmful. They constitute, according to Bolick, "a recipe for partisan and ideological gridlock." This gridlock has paralyzed parts of the judiciary and, in the words of Senator Patrick Leahy whom Bolick cites, "those who delay or prevent the filling of [judicial] vacancies must understand that they are delaying or preventing the administration of justice." [20]
What Are the Qualifications of a Judge?
• A commitment to making decisions based on the law and the facts of each case, setting aside personal ideological predispositions toward certain results. Indeed, judges must be "dedicated to a process, not a result. The law will be fairly read and applied, irrespective of the judge's personal views as to its wisdom."[21] Judges must be willing to make rulings whenever the law demands it, even if they find it personally displeasing. President Bush expressed his understanding of this when he said, "the courts exist to exercise not the will of men, but the judgment of law." • The requisite competence, temperament, character, knowledge of the law, and experience. The ideal judge is virtuous, courteous, humble, evenhanded, open-minded, and firm. A history that shows a great familiarity with and dedication to the law is also requisite. • A commitment to faithfully uphold the Constitution, recognizing that it is the supreme law and source of authority for all American law, including judicial precedents. The writings of the framers are replete with the notion that "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."[22] • A commitment to interpret the Constitution in accordance with long-established rules of interpretation, focusing on the express language of the text within the context of the original provisions and intents of the framers. Hamilton writes, "The rules of legal interpretation are rules of commonsense," but "the true test . . . of a just application of them is its conformity to the source from which they are derived."[23] Thus, judges must enforce laws according to their original understanding and intent at the time of their creation. It is not for judges to reinterpret law according to their modern-day preferences. • Adherence to the rule of precedent by following rulings from relevant cases to guide their own rulings. Precedents set by higher courts must be followed, and others should only be reversed when it is clear that they violated the original intent of the law. As Judge E. Grady Jolly of the Court of Appeals for the Fifth Circuit expressed in his dissent to a denial of rehearing en banc in Doe v. Santa Fe Independent School District:
When judges can pick and choose without the constraints imposed by precedent, the public is left stranded, vulnerable to liability, helplessly dependent on the panel it draws. . . . This failure to act, in turn, allows individual members of our court to continue to engage in an activity that has all the appearance of simply advancing personal philosophy.[24]
• An impartial and independent spirit that keeps them from being swayed by external pressures. Hamilton warns that times would come when "ill humors" and "momentary inclinations" would take hold of the people and give rise to unjust or partial laws, incompatible with the Constitution: "It would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."[25]
How Should the Senate Review Nominees?
• Senators should make decisions based on the nominee's credentials and judicial philosophy, ensuring that a nominee will follow and apply the law, not personal or political ideology, when deciding cases.
• The Judiciary Committee should question nominees in regard to their philosophy of interpretation, their written opinions and other writings.
• Nominees should not be asked for advance commitments to rule in certain ways in unresolved cases or cases that may come before them in the future.
• Senators should be cautious and avoid making assumptions based upon a nominee's current or former clients, memberships, and writings or speeches.
• Hearings should be for individuals rather than groups of individuals to ensure that nominees are not simply "passed through" without answering to the committee.
• Hearings should be focused on specific and relevant issues and not merely on eliciting vague verbal commitments such as a promise "to really live up to the rule of judging."
• The confirmation process should be reviewed periodically so that procedural defects will be uncovered and eliminated thereby allowing a fairer and more effective process in the future.
The process by which judicial nominees are selected and reviewed must rise above partisan politics. A politicized judiciary strips judges of their power to impartially interpret the law and causes the loss of trust and respect by the people upon whom judges must rely for adherence to their rulings. It removes the blindfold from Lady Justice. As Stephen Presser states, the issue is not "left or right, radical or reactionary, or even liberal or conservative, the issue is the separation of powers under the Constitution, and whether a nominee will faithfully adhere to it."[26]
END NOTES
1. Quoted by Hamilton, The Federalist No. 78 (Clinton Rossiter ed., 1961), p.466. 2. Ibid. 3. 215 F.3d 1243 (11th Cir. 2000). 4. Planned Parenthood of Southern Arizona v. Lawall, 193 F.3d 1042, 43 (9th Circuit. 1999) (dissent to denial of rehearing en banc). 5. Quoted in testimony of C. Boyden Gray, Senate Judiciary Committee hearing, "Should Ideology Matter? Judicial Nominations, 2001," June 26, 2001. 6. Cited in "Judicial Verbicide," in A Blueprint for Judicial Reform (Washington: Free Congress Foundation, 1980). 7. Statement of Senator Hatch, "Should Ideology Matter?" 8. Testimony of Tribe, "Should Ideology Matter?" 9. Testimony of Greenberger, "Should Ideology Matter?" 10. Testimony of Clint Bolick, "Should Ideology Matter? 11. Testimony of Presser, "Should Ideology Matter?" 12. Testimony of Volokh, "Should Ideology Matter?" 13. Bolick, Should Ideology Matter?" 14. 766 So. 2d 501, 510 (La. 2000) 15. Quoted by Presser, "Should Ideology Matter?" 16. Bolick, "Should Ideology Matter?" 17. The Federalist No. 76, p. 457 (emphasis added). 18. Ibid., pp. 457, 458. 19. Bolick, Should Ideology Matter?" 20. Ibid. 21. Report of the Commission on the Selection of Federal Judges," The Miller Center of Public Affairs, University of Virginia, 1996. 22. Alexander Hamilton, The Federalist No. 78, p. 467. 23. Hamilton, The Federalist No. 83, p. 496. 24. 171 F3d 1013, 1016 (5th Cir. 1999). 25. The Federalist No. 78, p. 469. 26. Presser, "Should Ideology Matter?"
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Some "empty" threads of non middle east interest.
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
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Some "empty" threads of non middle east interest.
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
Thanks for this incredibly enlightening post.
Now, if only we could get our Judges and Senators to be guided by these insights instead of by their personal Ideology.
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