Bench Memos

At Least They’re Consistent–Sort Of

Ed Whelan cogently criticizes today’s Washington Post editorial praising Sen. Lindsey Graham’s decision to vote for the confirmation of Judge Sonia Sotomayor to the Supreme Court.  I have a thought or two along similar lines.  On January 15, 2006, the editors of the Post made many of the same arguments in an editorial entitled “Confirm Samuel Alito.”  So at least they appear consistent.  On both occasions, they argued for deference to the president’s choice of a Supreme Court justice, as bespeaking a respect for the results of the latest presidential election. 

Of course, the Post’s editors do not call for absolute deference–or what would be the point of advice and consent?  In Justice Alito’s case they applied two tests they declared he had met.  First, he was declared “qualified,” in the narrow sense of legal knowledge, suitable experience, and level temperament.  Second, he was judged by the Post to be “moderate” or “mainstream” in some sense.  While declaring that they would not have chosen Justice Alito, the editors viewed him as “a thoughtful conservative, not a raging ideologue.”  (The “raging ideologues” are probably hanging out here at NRO, in the Post’s view.) 

Today they defended Judge Sotomayor by saying she was “qualified” and that her record shows “she could separate her personal feelings from her professional duties as a judge.”  Never mind that doubtful claim for a moment.  It’s hard to tell from the Post’s editorial today what the newspaper’s editors think a judge’s “professional duties” are.  They merely praise Sen. Graham for choosing to vote for a judge he wouldn’t have chosen himself, and they modestly refrain from reminding the reader that they took exactly the same position on Justice Alito themselves.

Perhaps “Confirm Samuel Alito” still represents the editors’ thinking on the standards that should govern confirmation.  If a Supreme Court nominee is “qualified” and “not a raging ideologue,” he or she should be confirmed, whatever different choice might have been made by senators or newspaper editors.  As welcome as a Post endorsement of such fine jurists as Samuel Alito and John Roberts may be, the second of these criteria is badly misplaced.

As I noted in recently criticizing the views of Princeton’s Christopher Eisgruber, the call for “moderate” Supreme Court justices stems from a failure to distinguish judicial philosophy clearly from political ideology.  Properly understood, the two have nothing to do with each other.  A political conservative can be a judicial activist, and a political liberal can be devoted to following the Constitution’s original understanding of a restrained judiciary.  (The strong but not perfect association of conservatism with originalism and of liberalism with activism in our own time is a matter worth much pondering–but these are not necessary associations.)  And a “moderate” in politics can be a “raging activist” of the worst sort.  I dare say Justice Anthony Kennedy, and retired Justice Sandra Day O’Connor, are both pretty “moderate.”  But they earned their reputations as consistent aggrandizers of judicial power–sometimes leftward and sometimes rightward, as befits “moderates” who like to be courted as the “swing voters” on a divided Court.  O’Connor and Kennedy, one might say, are perfect examples of the extremism of “moderation.”

And if we cannot plainly segregate judicial philosophy from political ideology, what grounds are there for preferring the “moderate” judge to the passionately ideological one?  Isn’t the judiciary just another electoral prize, in the Post’s view–and Sen. Graham’s?  Weak presidents may opt for “moderate” nominees, while strong ones with reliable Senate support may go for the “raging” type.  And why shouldn’t they?

There is an underdeveloped spark of recognition of the problems here when the Post in today’s editorial insists on a distinction between “personal feelings” and “professional responsibilities.”  If they mean no more than that Judge Sotomayor can keep ad hoc likes and dislikes for the parties before her out of her decision-making, then that wouldn’t be much of an expectation to meet, and would speak to the basic issue of judicial temperament.  But if the editors mean to indicate a difference between political views on the one hand, and apolitical devotion to the law on the other, then they are contradicting their own stand on judicial nominations over the last several years, which regards the injection of politics into judicial decisions as acceptable so long as it is “moderate” (as defined by the Post).  So which is it?

In the end, the Post’s editors have two problems.  They have to decide what they really think, and they have to decide what they think Judge Sotomayor thinks.  Do they endorse “moderate politics” on the Court, or do they insist on apolitical judging?  And which Sonia Sotomayor do they wish to believe–the one who celebrated the role her political views, shaped by her ethnic experience, played in her decision-making; or the one who woodenly repeated during her recent testimony that she has always followed and would always follow “the law” as laid down in the Constitution and statutes?

In a last ironic twist, we might note that if the editors of the Post believe hearing-testimony-Sonia rather than wise-Latina-Sonia, and if they also cling to their long-held opinion that political views enter into judicial decisions and that those views should therefore be Post-approved-moderate, then logically they should oppose Judge Sotomayor’s confirmation because she clings in their own view to a preposterous concept of the judicial function that no intelligent and candid nominee could possibly believe.