Politics & Policy

Subject to Durbin’s Interpretation

The Constitution, a senator, and the wrong questions.

Senator Dick Durbin (D., Ill.), writing in today’s Chicago Tribune, suggests that the future of our nation as a place of compassion, fairness, and equality is at stake in the hearings on judge John Roberts’s nomination to the U.S. Supreme Court. Senator Durbin has multiple targets in his commentary, and he covers several constitutional doctrines. But he disserves his readers with sleight of hand and emotionally loaded examples in place of accurate description of both the doctrines he describes and their relation to the Roberts nomination.

#AD#Durbin’s first target is the Supreme Court’s interpretation of a constitutional clause that gives the federal government authority to regulate interstate and foreign commerce. The Constitution sets up a system of divided power; it doesn’t give all the power to the states or to the federal government. In the area of commerce, the Constitution gives individual states primacy in regulating commercial activity that takes place within a state, but the national government has authority over commerce between states. Over the past 60 years, the Supreme Court has read the national government’s authority over interstate commerce more expansively, allowing Congress to regulate activity that takes place within a single state.

Durbin and other liberal politicians don’t like the notion that there is any limit on federal power. They don’t like the fact that the Constitution gives authority over some things to the states, and they see the few instances where the Supreme Court said “enough” as threats to future regulatory initiatives.

Durbin doesn’t say that, of course. Instead, he turns to the most inflammatory examples he can find to suggest that the America we know today couldn’t exist without unlimited federal power over commerce. He says that a racially divided America–he especially singles out the south–was made hospitable to African Americans thanks to the Supreme Court’s willingness to allow Congressto regulate discrimination in public accommodations, based on the power to regulate commerce. He says that the Constitution didn’t provide any authority to adopt the Civil Rights Act of 1964, apart from the commerce clause. Durbin doesn’t mention that there is a specific provision in the 14th Amendment–the amendment that contains the equal-protection clause–giving Congress “power to enforce, by appropriate legislation, the provisions” of the amendment. Durbin simply looks past the express constitutional language giving Congress the power to protect the civil rights of African Americans., which makes it easy to suggest that limitations on Congress’s commerce power might threaten minorities.

Durbin also points to Roe v. Wade, noting that the right to privacy it protects–the right to have an abortion free from state regulation of certain types–is not expressly found in the Constitution. That, of course, has prompted considerable argument over the past 30 years. In the absence of clear constitutional language, it’s hard to know just how broad certain rights are and where courts should draw the lines. But Durbin’s implicit message is that any right to freedom from state regulation of private conduct is at risk unless a Supreme Court nominee–read Judge Roberts–swears to uphold Roe v. Wade.

The import of Durbin’s article is that senators need to get detailed maps of what potential Supreme Court justices think in order to assess how their nominations will affect us, that without a commitment by the nominee to support particular doctrines–and even to particular outcomes–our lives are at risk. This attitude mischaracterizes how courts work, how judges make decisions, and it also threatens the independence of the judiciary. It treats judges more like politicians than interpreters of the law. If the Senate follows Durbin’s lead, it will go further down the road of politicizing the judiciary.

Supreme Unpredictability

The truth is that the judges do not and should not come with pre-commitments. Judges look at the text of legal authority, like the Constitution, at prior judicial decisions, and at the facts of the case before them, and they decide a particular question on that basis. They cannot know what the decision will be in advance; They cannot predict how they will decide without knowing all the facts, without hearing the arguments, without seeing the way lawyers in the case explain how a decision one way or the other will affect the law. Often, judges do not really know how they will decide a matter until they are well into the process of writing the decision.

Politicians who want to extract commitments from judges up front treat them as if they are political candidates. Those politicians try to prevent exactly the sort of reflection, consideration, and analysis that the judicial process depends on. And if judges are confirmed who feel that they have made commitments to the Senate, then that makes courts less independent and less sturdy bulwarks against the political branches. In other words, Senator Durbin’s approach threatens the constitutional structure that gave us the court decisions he applauds.

Look, for example, at a case that is central to the equal protection of African Americans, Brown v. Board of Education. Brown overruled Plessy v. Ferguson, which had adopted the “separate but equal” doctrine. Durbin would applaud this departure from precedent, but he should understand that if Brown is good, we don’t want to insist on judicial nominees’ swearing allegiance to existing case law.

Even more, Brown illustrates that we can’t predict what the important decisions are that a justice will face. Franklin Roosevelt, appointing justices Black, Reed, Frankfurter, Douglas, and Jackson to the Court, certainly didn’t think that the most important case they would decide would be the one that repealed Plessy.

Look at the Court that ruled in Roe v. Wade. It included four Nixon appointees who were considered quite conservative when appointed, one Johnson appointee, a Kennedy appointee, two Eisenhower appointees, and a justice appointed by Franklin Roosevelt 35 years earlier. Constitutional rights to abortion were not the focus of these appointments, and the senators voting on the confirmation did not foresee Roe when deciding if each nominee deserved a lifetime appointment to the Court. If they had been looking at that possibility, who would have predicted that five of the six justices appointed by Republican presidents would find in the Constitution a right to abortion?

Many judges have taken the Ruth Bader Ginsburg route, and declined to answer questions on particular doctrines, cases, and outcomes. And the Senate, rightly, respected those nominees’ decision to keep an open mind on the matters that might come before them. Senators who voted overwhelmingly for Ginsburg knew she was a liberal–replacing a very conservative justice, one of the two dissents in Roe–just as senators who voted unanimously for Justice Scalia knew he would be conservative. But the Senate in both instances respected the independence of the judiciary and stopped well short of the intrusive inquiries that Senator Durbin wants to make of Judge Roberts.

Unlike Durbin’s intimations, the future of the nation depends far more on the Senate acting judiciously–on its respecting the role and independence of the justices–than on pressing the justices for legislative commitments.

Ronald A. Cass, president of Cass & Associates, a legal consultancy in Great Falls, Va., is former vice chairman of the U.S. International Trade Commission, dean emeritus of Boston University School of Law, and author of The Rule of Law in America.

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