As the longest-serving current member of the Senate Judiciary Committee, I have participated in 13 Supreme Court confirmations. The confirmation of Judge Neil Gorsuch, set to begin with hearings in just a few days’ time, will be my 14th. If one thing has stayed the same in all that time, it is that the conflict over judicial appointments — and especially Supreme Court appointments — is fundamentally a conflict over the proper role of a judge.
The two sides of this conflict are represented by two kinds of judges. One is impartial; the other is political. The impartial judge embodies the role envisioned by the Founders in our Constitution, fulfilling his duty to “say what the law is,” rather than reinventing the law as he wishes it would be. By contrast, the political judge views the role of the judiciary as no different than that of the legislature, using judicial review as a metaphorical “second bite at the apple” to achieve his preferred political objectives. The stakes in this conflict are enormous: It determines whether the country is governed by the sovereign people or by unelected, unaccountable judges.
The confirmation process allows the Senate to ascertain which kind of justice Neil Gorsuch will be. For those who view the judiciary as an extension of politics, the confirmation process is about one thing above all else: establishing what the policy consequences of a prospective judge’s decisions will be. When President Bush nominated Chief Justice John Roberts in 2005, one Democratic member of the Judiciary Committee neatly summed up this approach as such: “Whose side is Judge Roberts really on, on the really important issues of our time?” Another described the goal of the confirmation process as determining “whether Judge Roberts will stand with us and with our families or be on the side of major special interests.”
Something is seriously wrong when the confirmation process for a Supreme Court nominee sounds just like an election campaign. The notion that a judge would decide cases on the basis of his loyalty to particular political positions is repugnant to our system of government. Indeed, the very oath required of judges by federal law demands that they “administer justice without respect to persons, and do equal right to the poor and to the rich, and . . . impartially discharge” their duties.
Anyone with a basic understanding of civics could tell you that the prospect of a judge’s making up his mind on a case before hearing all the evidence and arguments is inimical to the very idea of the judiciary as it was conceived in the Constitution. Codes of judicial conduct across the country echo this sentiment. The ABA Model Code says that judges should not make pledges, promises, or commitments in connection with issues that are likely to come before them. And the federal Code of Conduct for United States Judges prohibits judges from giving “public comment on the merits of a matter pending or impending in any court.”
It has been the consistent practice of judicial nominees of both parties to follow these rules before the Judiciary Committee. For example, Justice Ruth Bader Ginsburg, appointed by President Clinton in 1993, said that offering forecasts or hints of how she might rule on specific matters before that court “would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” And Justice Antonin Scalia, whose vacancy Judge Gorsuch has been nominated to fill, said after his nomination by President Reagan in 1986 that refusing to offer such forecasts or previews is the only way for a judge to protect his impartiality.
By asking nominees to pre-judge cases and pre-commit to particular outcomes, liberals are not just violating the niceties of protocol; they are attacking the independence and impartiality of the judiciary, all the while claiming they want “mainstream” judges. They can’t have it both ways. There is nothing “mainstream” about the radical notion of unaccountable judges imposing a political agenda on the country. To do so is to disregard the rule of law.
America needs impartial judges. I believe the record demonstrates that Judge Gorsuch will be such a judge on the Supreme Court. Attempts to use his confirmation process to demand policy commitments from him — and any subsequent attacks on him for refusing to make such commitments — should be seen for exactly what they are: a radical effort to reshape the judiciary into a political institution.