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 esterday,
the Senate again conducted a hearing on the appropriate manner to
evaluate judicial nominees. After 200 years of experience, one would
have thought this settled. Hamilton explained in the Federalist
Papers that the Senate's role would not be to micromanage. Rather,
"the necessity of their concurrence would have a powerful,
though, in general a silent operation." In other words, since
the president would know that his choices could be rejected, it
"would be an excellent check upon the spirit of favoritism
in the President, and would tend greatly to prevent the appointment
of unfit characters from state prejudice, from family connection,
from personal attachment, or from a view to popularity."
The latter
remark outlines succinctly the nature of an appropriate Senate inquiry:
integrity (to screen out improper cronyism or "family connection"
in appointment); fitness (to eliminate those not possessing either
the temperament or training); and fidelity to the rule of law (to
ensure that rulings are not merely given with "a view to popularity").
So what's the point of belaboring the question today in hearings?
None. Or at
least none envisioned by the Constitution. Democratic senators,
newly energized by their majority status because of a party defection,
want to "pay back" the Republicans for supposedly blocking
Clinton nominees and a handful of academics have convinced Senator
Schumer that partisan screening of judicial nominees is appropriate
to bring greater balance to the federal courts.
Political rivalry
aside, there is nothing to pay back. Mr. Clinton over his two terms
appointed virtually the same number of judges as President Reagan
(377 vs. 382). So too, the numbers of nominees left unexamined at
the end of each term were comparable.
And as for
the supposed need for balance, no one really has a fixed idea of
what that means. A Supreme Court with a composition reflecting five
presidential perspectives and yielding 5-4 decisions where the issues
(federalism, affirmative action, religious participation in the
public square) are sensitive and the people, themselves, rightly
cautious is hardly unbalanced. And all the blather about there being
too many former judges on the high bench (and not enough former
politicians or people with other experience) either stands the Framers
criteria for selection on its head or is untrue. Yes, Ruth Bader
Ginsburg was an appellate judge, and so were Clarence Thomas, Antonin
Scalia, and Stephen Breyer, but they also had distinguished careers
as advocate for women's rights, senior legislative assistant, executive
official, and teacher, respectively.
What the cry
for balance really disguises is a desire for different outcomes
in specific cases dealing with Congress' civil-rights enforcement
power, the appropriate scope of federal commerce-clause authority,
and the line between was is national and what is local. These are
all important issues, but it is neither appropriate nor effective
for the Senate to deal with them through the judicial confirmation
process. Attempting to do so indulges a host of erroneous suppositions
not the least of which is that the courts are merely alternative
policymaking venues. In the pages of the Washington Post
last week, Joseph Califano Jr. contended for a partisan screening
of federal judicial nominees because of Congress's failure to address,
among other things, big tobacco and handguns. Whether or not one
subscribes to Mr. Califano's take on such matters, it is certainly
an odd prescription to try to save us from the "political pandering
and gridlock" (Mr. Califano's words) of one branch by manipulating
the composition of another.
And lest it
be forgotten, the other branch — the judicial one — is
intended to be independent. The significance of an independent judiciary
is well known to every school child. The point was made plain in
the bill of indictment included against the English King in our
Declaration of Independence. "He has made Judges dependent
upon his Will alone, for the tenure of their offices," our
founders complained.
Unfortunately,
when times get rough we are inclined to forget the significance
of judicial independence to the rule of law. FDR forgot it in trying
to address the severity of the Depression. Yet, even under those
dire circumstances, the idea of attempting to force judges to bend
to the political will was overwhelmingly and loudly rejected. Wrote
the Senate Judiciary Committee in rebuffing FDR's court-packing
plan: "if we may force the hand of the Court to secure our
interpretation of the Constitution, then some succeeding Congress
may repeat the process to secure another and a different interpretation
and one which may not sound so pleasant in our ears as that for
which we now contend. . . .[The] initial and ultimate effect [of
undermining] the independence of the courts," and [violating]
"all precedents in the history of our Government and would
in itself be a dangerous precedent for the future."
One would think
that the significance of an independent judiciary would be reasonably
plain to us, less than a year distant from a disputed national election
in which it took the courage of seven justices to highlight a fundamental
breach of equal protection. However, it is the opposite. It seems
that those calling most insistently for the partisan screening of
judicial nominees are those wanting to relitigate Bush v.
Gore. In his written testimony, one witness at the hearing
stated: Bush v. Gore is "a patently illegitimate
decision, . . . monumentally unpersuasive; and . . . its illegitimacy
taints Mr. Bush's own status as our President."
This is not
the place to reargue Bush v. Gore. However, it is
clear that, unlike some academics, the overwhelming percentage of
people (and not just a majority of the Supreme Court) accept the
proposition that equal protection when applied to ballots means
at least this: If you're asked to count votes, you have to know
what you're counting. Even when the Florida supreme court reflected
upon the matter after the High Court's disputed ruling, five of
the state justices who had previously ordered the standardless recount
affirmed that "the development of a specific, uniform standard
necessary to ensure equal application and to secure the fundamental
right to vote throughout the State of Florida should be left to
the body we believe best equipped to study and address it, the Legislature."
Respect for
the lawmaking enterprise, for legislatures — especially the
Congress — is a salutary byproduct of the proper exercise of
advice and consent. If the confirmation process reflects that the
judicial function is limited to interpreting the Constitution, policymaking
is kept in the hands of those who are most accountable to the people.
The Senate's power of advice and consent is broad, but a fair interpretation
of the qualities required of judicial nominees is legal capacity,
personal integrity, and a commitment to abide by the Constitution.
The Constitution
is not abided, but subverted, when the Senate seeks to obtain commitments
for favored policy outcomes from those nominated.
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