Few Democratic senators support Judge Samuel Alito’s confirmation to the Supreme Court, but this does confirm one thing: The appointment process for federal judges has spiraled downward into the equivalent of a political campaign.
Both of our national parties and interest groups on all sides trumpet partial truths, run ads, use surrogates to attack and appeal for donations. In the past decade, this decline has spread to nominees for the lower federal courts. Beyond what this means for candidates and their families, it now touches our constitutional fabric. Single-issue campaigning and accusations about a nominee’s “ideology” are undermining the legitimacy of judicial review and the ideal of non-partisan judges. The president can take some steps to restore a more judicious process, but the Senate must take the lead, since it is there that the most partisanship arises.
For justices Ruth Bader Ginsburg and Stephen Breyer a decade ago, nearly all Republican senators consented to nominees of a Democratic president who were legal liberals but qualified by historical standards. If President Bush’s future nominees match the caliber of Chief Justice John Roberts (for whom many Democrats voted) and Judge Samuel Alito, then most Democrats should accept them as qualified legal conservatives.
Like Ginsburg and Breyer, both Roberts and Alito earned the highest endorsement from the American Bar Association. They further demonstrated intellect and an even temperament in hearings. Raising any standard other than duty to the Constitution and an independent judiciary makes cannon fodder of nominees and the judiciary itself. To avoid threats of “payback” when the presidency or Senate majority changes party (as they will at some point), the Senate should recover its constitutional senses now.
To be fair, it is not only senators who fail to see the danger to the rule of law. I teach politics and constitutional law to future military officers. Since their primary duty is to serve the Constitution, we discuss the complexity of our system, with separation of powers and a judiciary that can overrule the elected branches on the Constitution’s meaning. This can be confusing enough, but in the past century a theory arose that all judging is political and all legal interpretations are policy-driven. This transcends the traditional view of interpreting the Constitution broadly or according to its spirit. Rather, the “realist” theory says that important ideas in the Constitution are so vague as to be empty, and all law evolves as societies change – so, judges must consult their ideologies. Liberal and conservative adherents, and most law and political science professors deem it simple-minded to see judges as impartial interpreters of the law. It is not surprising that journalists, and many senators, think of judges as lawmakers hiding behind robes.
This realist theory needs a reality check. It has produced a culture in which all sides denounce as activism any rulings against their preferred result. It has led some judges to be improperly political and bold. So now the rare or unthinkable becomes routine: Even lower-court nominees face filibuster threats; the Senate majority threatens to quash this traditional privilege; a president’s own party campaigns against his high court nominee. Recent national studies suggest that the broader citizenry worries about partisan conflict over the courts, disapproves of judges acting as politicians and is losing confidence in the courts. America is deficit-spending its legal capital. It has taken centuries to build an independent judiciary that protects the rule of law and basic rights. What will be left for the legal theorists and activists to fight about if the current trend deepens? The authority of courts will decline, and the most qualified will not enter this poisoned arena.
Both parties need to rediscover our constitutional reality: Judges must pass through a partisan president and Senate, but once on the bench their authority rests upon distinguishing legal rulings from policy preferences. Constant hyperbole from interest groups, the media, and academia now buries that subtle point.
Perhaps a reminder about judicial robes can help? My military colleagues and students wear uniforms to remind them of high standards and duties, and it is no accident that judges are the only other federal officials with a uniform. Soldiers and judges make mistakes or can be biased – but their uniforms call them to account and tend to counteract these failings. Equating judging with policymaking, vetting nominees for “ideology” and excoriating them about particular “results” only spurs the other two branches to reduce judicial matters to bare-knuckle politics.
Senators can lead the way out of this quicksand by distancing themselves, as much as is humanly possible, from partisan campaign rhetoric about the judiciary. Roberts and Alito have done their part by reaffirming the judiciary’s role as neutral umpires, not policy players. It is regrettable that many professors, pundits and activists do not see a crisis brewing. But this is not the first time that some senators have been called to offer profiles in courage.
Paul Carrese is a professor of political science at the U.S. Air Force Academy. The article reflects his views only and not those of any government agency.
