Are senators somehow obliged to defer — up to significant point, let’s say — to a president’s nominations to the Supreme Court? Several Bench Memos contributors have addressed the subject recently. But none has made the following point, at least not clearly. Maybe it’s my naivete showing, but should not conservatives reflexively respond: no. Senators should “defer” to (be bound by, follow) the Constitution, not the president — or the party or the election returns or, frankly, anything or anyone else. To think otherwise is, I submit, to concede too much to the liberal constitutionalism we all seem to reject.
What I mean is this: Judicial conservatives criticize liberals for “activism,” for “legislating from the bench,” for — let us now speak plainly — making up the Constitution as they go. That is what a “living Constitution” basically amounts to. Conservatives hold that the Constitution has, and should continue to be understood and applied as having, pretty determinate meaning. Not every single provision of course; there are some vague clauses and some other really were meant by the Founders to be read according to the signs of the times. (What is an “unreasonable search and seizure,” for example, depends upon contemporary circumstances, which is not to say that today’s courts ought to monopolize search and seizure law as they have. Maybe they should defer more to today’s legislators and executive officials.) But conservatives, as far as I can tell, characteristically hold that the Constitution is real law; it comprises norms specific enough to guide decision. It is not a collection of “values” or “evils to be protected against” or “visions”.
For conservatives, the Constituion is not a charter to judges simply to make new law. Even highly determinate legal norms have to be intelligently applied by judges, of course, and that must be done in light of today’s facts. But conservatives hold, I think, that the relevant legal norms — the basic rules of decision — are to be gathered from the Constitution and near-in aids to its interpretation, most notably evidence of the ratifiers’ understanding. And that they usually can be. And there is an end to it. This is pretty much what Scalia and Thomas do.
Conservatives believe that there a lot of constitutional questions to which there is a correct answer. It seems to me that senators (and presidents, for that matter) ought to be concerned to select and confirm people to the Court who will get it Right — that is, correct. That is what the Right (that is, conservatives) should “defer” to. No “A’s ” for effort. No free passes for really smart people who — for all we know based upon past records and present hearings — will very intelligently get the Constitution WRONG.
One of the many failures of recent conservative rhetoric about the Court is that this position of mine may seem “results oriented” — and that conservatives have been trained to reflexively reject anything of the sort. Of course conservatives are “results oriented” when it comes to the Court: Some results are correct and some are not. We should prefer the former.
Of course what might be called “original meaning” is now too often encrusted with layers and coats of judicial precedents, some good and some bad. Of course any conservative justice today has to have a working theory of precedent. But, lest constitutional law become an endless midrash of precedents which themselves were products of judicial legislation, that theory must rest on a modest rule of deference to prior decisions. And I think that any nominee to the high Court should be expected to share, in all candor and in considerable detail, his or her theory of precedent, lest the Constitution (and the ratifiers’ understanding of it) be relegated to footnotes in the US Reports.
So, here is a question with which to kick off the next set of hearings: Mr. or Ms. Nominee, please name five cases which are today binding Court precedents but which you believe to be cases of judicial legislation?
Call this “results oriented” if you like. Argue that it violates the spirit of some canon of judicial ethics, if you wish. And you are probably right if you say that it is not the political game plan of the day. But for the life of me I cannot imagine going along with any nominee who makes rejection of “legislating from the bench” the center and anchor of his or her judicial philosophy, but who will not tell us what it is.