Editor’s Note: This article originally appeared in the June 22, 2009, issue of National Review, during the debate over Sonia Sotomayor’s Nomination to the Supreme Court.
Charles Krauthammer said it better than they would have said it. But a lot of Republicans were surely nodding in agreement as they read the columnist’s argument that they should vote to confirm Sonia Sotomayor “solely on the grounds — consistently violated by the Democrats, including Senator Obama — that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.”
On that last point, Krauthammer is all too correct. Among the doleful consequences of our last elections is that our future is highly likely to include “Justice Sotomayor.” The question is whether Senate Republicans, who were also elected, should be complicit in her elevation. “No” is a reasonable answer to that question.
President Obama has the constitutional power to nominate whomever he likes to the Supreme Court. But it is not as though he had a mandate to promote liberal activism on the bench. Sotomayor’s confirmation could play an important role, for example, in the invention of a federal constitutional right to same-sex marriage. Yet Obama did not campaign on any such platform. He campaigned instead as an opponent of same-sex marriage. Even if the public knew that his judicial appointees were likely to expand felons’ rights to vote, restrict the use of the death penalty, require more generous treatment of terrorist detainees, and so forth — a dubious proposition — it is implausible that it voted for him because of those issues.
And even if the public had voted on that basis, Republicans would be bound to ask whether a vote for a liberal justice furthered their duty to safeguard the Constitution. If election results nullified that duty, there would be little point in having a Constitution.
As for deference to the president, it is a political norm rather than a constitutional requirement. There are good reasons for a well-working constitutional order to adopt and maintain that norm. If judges could generally be trusted to respect the proper limits of their authority, then so long as the president’s nominees had displayed competence and integrity senators would be right to give their consent to the nominations.
As for deference to the president, it is a political norm rather than a constitutional requirement.
Even in that situation, senators would expect to disagree with the nominees from time to time. On the bench the nominees might make mistakes, or confront cases that demanded close calls. Sometimes those close calls would concern matters that divide the parties, and opposition senators might have special reason to worry about how the president’s nominees would decide them. But senators would not fear that the nominees would routinely exceed their constitutional authority. Bringing partisanship to the confirmation process, on the other hand, might undermine this happy state of affairs. It might make it seem as though the rule of law took a back seat to party politics. To avoid this risk, and in the interest of comity, senators would have good reason to vote for the president’s nominees almost all the time.
In part because of these considerations, Republicans have for many years argued for senatorial deference to the president on judicial nominations. They have also favored a set of related norms. The nominee’s judicial philosophy, they have sometimes said, should generally not affect a senator’s vote on confirmation: A president is entitled to a nominee who shares his judicial philosophy, unless that philosophy is “out of the mainstream.” Senators, further, should feel circumscribed in the questions they can legitimately ask. Any questions about judicial philosophy should stay at a high level of abstraction. Senators should not inquire how a nominee interprets particular constitutional provisions. If a senator goes over the line in his questioning, the other senators should excuse the nominee for not answering.
Widespread adherence to these norms is helpful for whichever party holds the presidency. Thus Republicans were especially devoted to them during the Bush administration, even though their advocacy of the norms does not appear to have swayed many people who were not already disposed in favor of Bush’s nominees. But Republicans did not adopt them purely because of partisanship: A large majority of them voted for both of President Clinton’s Supreme Court nominees because they thought they should defer to him. They never dreamed of filibustering either nominee, as Democrats, including then-Senator Obama, attempted when Bush nominated Samuel Alito.
The main flaw with these norms — deference to the president, limited questioning, voting without reference to judicial philosophy — is that they presuppose a self-limiting judiciary that does not exist. Our actual system of governance has for decades featured a routinized, and mostly liberal, judicial activism.
Our actual system of governance has for decades featured a routinized, and mostly liberal, judicial activism.
Today’s courts manage prisons and school districts. They decide how we may control our borders, whether we may adopt school choice, and under what circumstances we must tolerate euthanasia. They make authoritative pronouncements about the psychology of schoolchildren and the motives of legislators. The justices of the Supreme Court have far more discretionary power than any nine senators do.
Our legal culture questions none of this judicial rule. Instead it pulls judges without strong contrary convictions into the embrace — first practical, then formal — of this (again, mostly liberal) judicial activism. Conservatives rail against some judicial decisions and applaud others. They applauded, a few years ago, when the Court upheld school vouchers on a 5-4 vote. But hardly anyone mounts serious resistance to the idea that it should have been within the Court’s power to strike them down.
That is another way of saying that judicial power faces few checks. In large part that is because its rise has been accompanied by the spread of protective political ideas. Once the courts have finished their handling of a case, their decision is taken as binding and final. Other branches of the government are widely assumed to be obligated to treat their decisions as correct. If the federal courts have ruled on a constitutional matter, Congress cannot overrule its decision by statute, and many people think it is improper for Congress to exercise its authority to withdraw jurisdiction from the courts by statute. States have even less leverage against the federal courts. Impeachment is considered out of bounds as an answer to judges who overstep their bounds.
The remaining checks on the federal courts are weak. Constitutional amendments have been proposed to undo the effects of some court decisions, but they are by design impossible to enact without the support of supermajorities of the public. If an erroneous Supreme Court decision has any political constituency behind it at all, an amendment will not correct it. Opponents of a decision may try to elect presidents who will name judges who will overturn it. But the possible slips between cup and lip are too numerous to count.
The norm of deference further weakens the few weak checks on judicial power we still have.
We may try to persuade the justices to change their minds. But if our attempts include vocal criticism of their decisions, we may find ourselves condemned as threats to judicial independence. The justices might claim that this same independence requires them to refuse to reconsider their mistakes. (See Casey v. Planned Parenthood or Dickerson for examples.)
The norm of deference further weakens the few weak checks on judicial power we still have. Senators who adopt it are voting to grant vast and essentially unreviewable power to a nominee regardless of the uses to which he will put that power — and often while refusing in principle to get as much information as possible about those uses. Making sure that nominees are in the “mainstream” of the contemporary legal culture compounds rather than mitigates the problem, since that legal culture is entirely comfortable with the enhanced power of lawyers (and far more so than the general public is). An in-the-legal-mainstream test will tend to screen out opponents rather than proponents of judicial rule. Robert Bork wasn’t in the legal mainstream; Ruth Bader Ginsburg, the ACLU’s lead litigator, was.
Judge Sotomayor is in the legal mainstream, too, albeit on the left edge of it. The case for voting her down is not that she is a particularly egregious judge. It surely has nothing to do with her much-discussed “identity” as (take your pick) a pathbreaking Latina or a racial extremist. It is, rather, that she would take us farther away from democracy, the rule of law, and the Constitution. So would nearly anyone else that this president would have picked.
Sotomayor would take us farther away from democracy, the rule of law, and the Constitution.
The president has infamously said that his nominees would be selected for their “empathy” toward single mothers, gays, and other groups. During the presidential campaign he said at least twice that his nominees would also support Roe v. Wade. That decision was a supreme act of activism: The right it announced had no mooring in the text, history, structure, or logic of the Constitution. There are those who say that the decision has been on the books for so long that it ought to stay: that its precedential force trumps its unconstitutionality. But to commit in advance to stick with it — and unless Obama lied, she has made that commitment, if only by wink or nod — is to show indifference to its offenses against self-government. That indifference will surely carry over to other areas of adjudication.
Her defenders deny that she is a liberal activist, but they have almost nothing to work with in building that case. They say that in some decisions she has sided with businesses, in others with pro-lifers, and in many with precedent. This defense sets the bar for being cleared from the charge of activism very low indeed. In cases involving the right to confront one’s accusers, Justice Antonin Scalia sides with criminal defendants. Will Sotomayor’s defenders call him a moderate too? The only thing this defense really establishes is that Sotomayor does not indulge in liberal activism when she is sure to be overruled and set back in her career. Neither constraint will apply when she sits on the Supreme Court.
It is not within the power of Republican senators to keep her off the Court. It is, however, within their power to register their disapproval of the way the Supreme Court’s constitutional law has drifted farther and farther away from the Constitution on which it is supposed to be based. Republicans should highlight those decisions of hers that put her tendency to abet that drift in stark relief. They should not allow themselves to be sidetracked into discussions of Judge Sotomayor’s racial views or, even more, her intellect. Debate on those topics will not help them make the case for constitutionalism. Neither will “yes” votes.