The wringing of hands over judicial nominees being fought over in the Senate returns. I was reading a closely argued blog describing the parliamentary techniques used to speed or slow or impede nominations. While the article nicely demonstrates the ingenuity of using parliamentary procedure, it stumbles by promulgating the common assumption that the nominating process ought to be impartial and apolitical. This leads to the second flaw: the remedying of the procedural hurdles will lead to a smoother, and presumably better, nominating process. (Which is not to disagree with the author that the procedural hurdles should be fixed, but to clarify that substance, not process is the essential problem.)
First, the assumption that the nomination process ought to be impartial and apolitical is absurd. Of course, a president will nominate candidates he considers worthy of the job, which includes of the right political bent. Hence, President Eisenhower's regret over appointing a conservative who turned liberal — Earl Warren — to the Supreme Court: “The biggest damn-fool mistake I ever made”
Second, the apolitical argument flies in the face of recent history. The nomination process reflects the battles fought in courts over issues such as civil rights, abortion, separation of church and state, equal protection, gun control and so forth. There are deep divides within the body politic on these topics. Or where a consensus has been reached, there are enough unreconciled to the outcome to mount a steadfast challenge. All this feeds into the nominating process. Those nominees when appointed will serve for life, issuing rulings on these very topics, so their nominations cannot be divorced from politics.
In such an environment, it is hardly surprising that a nominee's qualifications will include sharing (or not denying) the president's stance on these issues (which are often planks from his party's platform). So if the Senate is considering qualifications, it will be considering political stances.
The rancorous hearings and the subterfuges of senators to promote or block certain nominees are pure politics. But so is a president's intent to fill the courts with appointees reflecting his political philosophy, something he has every right to propose. But to then argue that the Senate must ignore this political move is naive or dishonest.
Posted at May 21, 2003 11:51 AMAlthough there is a deep divide (which is to say, philosophical differences) in the body politic over topics such as gun control, civil rights, abortion and the like, the Constitution is a structural document allocating and enumerating powers to various bodies of government. It is through these allocations and enumerations that civil society decides how to legislate (or not) on those topics. When the Constitution itself is used as a tool by a body of lifetime governors (not accountable to anyone for their decisions) to make those decisions for the people, then it has been turned into a political weapon for one party against the other.
I think that it is this politicization of the Constitution that is the big problem here. The idea that the Constitution should be [re]interpreted to accord with a factional opinion rather than read as an historical contract with certain defined meanings is much at the root of the problems with the current nomination process. And, unless resolved, could cause much more damage further down the road.
Posted by: Sean Stickle on May 21, 2003 04:53 PMFor a defense of a less political approach, see
http://lsolum.blogspot.com/2003_05_01_lsolum_archive.html#200307682
I argue that the practice of judging out to be apolitical and "neoformalist." Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law.
Posted by: Lawrence Solum on May 21, 2003 05:07 PMHow very strange! I was reading Solum's Neoformalist Manifesto just moments ago as well. Hmm.
Another fine read is Robert Bork's _The_Tempting_of_American, which is a good essay on the formalist approach to Constitutional law. My wife and I are tag-team reading it. Good stuff.
Posted by: Sean Stickle on May 21, 2003 05:21 PMI heartily agree with both of you that the process surrounding the court nominations has gone seriously awry and with the need to uphold standards. But I perceive the nominating process as part of a larger and very serious problem: our apparent inability as a society to resolve differences through straightforward political processes. Instead of working to win the next elections and alter legislation, factions now go to court when they lose. Or they go to court to settle an inherently political question because they cannot agree: our national legislature looked to the courts to resolve a political dispute over census data. So, logically, judicial nominations have become the target of smart factions, with the result that the judiciary becomes politicized. It is this failure of the civil society that I fear is most damaging.
Posted by: Liesl on May 21, 2003 07:03 PMThis discussion has been closed. No more comments may be added.