SENATE CONFIRMATION OF JUDICIAL NOMINATIONS:
WHAT ROLE SHOULD IDEOLOGY PLAY IN THE PROCESS?
By U.S. Senator Orrin G. Hatch
I submit that political ideology should not be injected into the judicial confirmation proc- ess and, thus, into the Federal Judiciary. The Senate Judiciary Committee's long-stand- ing policy against injecting ideology into the process should be maintained.
There are myriad reasons why political ideology is not an appropriate measure of judicial qualifications. Fundamentally, the Senate’s responsibility to provide advice and consent does not include an ideological litmus test because a nominee’s personal opinions are largely irrelevant, so long as the nominee can set those opinions aside and follow the law fairly and impartially as a judge.
In our constitutional scheme, the members of the Legislative Branch elected by the peo- ple, and accountable to the people, are the officers who make our laws. When the voters do not like these laws, they can, and, as we know all too well, do, vote their elected rep- resentatives out of office. This is what makes our system a representative democracy, founded on our faith in self-government.
Federal judges, by contrast, are unelected, have life tenure, and, by design, are not ac- countable to the people. Their power is nonetheless justified–indeed, indispensable–to the extent it is only exercised by interpreting the written, duly enacted law. The role of federal judges is, quite simply, to apply the written law, be it the Constitution or enacted legislation, to the case before them.
But when federal judges deviate from the written law, and decide cases based on their own policy preferences or views of what is just or right, they in effect make up laws of their own, despite the lack of legitimate authority for doing so. When judges twist the language of legislation to enact the policies they prefer, they usurp the role of the leg- islature and destabilize the balance of power. Even worse, when they read their own preferences and political agenda into the Constitution, judges directly thwart the will of the people. And voters have no recourse. As a result, entire spheres of policymaking are, in effect, ruled off-limits from the people’s elected officials, and instead are usurped by imperial judges–all-knowing guardians of justice. This is judicial activism, and it rep- resents a direct attack on the democratic principles that are central to our constitutional system.
These are the reasons why the Senate’s appropriate role is not to probe the political ideology of nominees, but rather to make sure that nominees will follow and apply the law, not personal conviction, when deciding cases. When I discharge my responsibility as a United States Senator to advise and consent, that is the test I apply–not political af- filiation or views on any particular issue, but philosophy on a judge’s limited role in our constitutional system of checks and balances.
Now that I have explained why we must keep political ideology out of the confirmation process, I would like to address some recent attempts to reinvent history by repeating the convenient myth that I, as Chairman of the Senate Judiciary Committes, blocked President Clinton’s judicial nominees on the basis of political ideology. At the outset, I must note that the confirmation statistics from the past six years demonstrate that the Republican-led Senate appropriately put aside the politics of judicial nominees. During President Clinton’s two administrations, the Senate confirmed 377 judicial nominees. This is only five fewer than the number confirmed under President Reagan, who holds the all-time record. This comparison is particularly relevant to the question of political ideology when you consider that President Reagan enjoyed six years of Senate con- trolled by his own party, while President Clinton faced six years of a Republican-con- trolled Senate. The overall rate of confirmations speaks for itself: the Senate confirmed 90 percent of President Clinton’s judicial nominees. If Republicans had based their votes on partisanship or litmus-test issues, there would have been but a few Clinton judges sitting on the federal bench today–not a near record.
How did we accomplish the confirmation of 370-plus Clinton judicial nominees? Well, for one thing, I held prompt hearings on many nominees. For example, 20 Clinton judicial nominees received a hearing within two weeks of their nomination. Thirty-four Clinton judicial nominees received a hearing within three weeks of their nomination. And 66 Clinton judicial nominees received a hearing within a month of their nomination.
In many months, I also held multiple confirmation hearings. For instance, in 1997, we held 3 hearings in September, 3 in October, and 3 November. We often held hearings for more than 10 nominees in a month. And in other months as many as 15 or 16 nominees received a hearing. As a result, 377 of President Clinton’s nominees are sitting judges on the federal bench today, many of whom have political philosophies completely at odds with my own.
Given the Judiciary Committee’s recent track record, it is clear that the real question posed by this hearing is not the role of political ideology in past confirmations, but rather whether the Committee should now begin injecting political ideology into the process. I read recent press reports on a Farmington, Pennsylvania, retreat that 42 Democratic Senators attended in late April. According to the reports, a panel discussed the need to scrutinize judicial nominees more closely than ever. One person who attended was quoted by the New York Times [May 1, 2001], as reporting that "[t]hey said it was im- portant for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite." It appears that today’s hearing may represent the first step in a troubling attempt to accomplish the goal of changing the ground rules by altering the long-standing practice of avoiding any examination of po- litical ideology beyond the question of whether nominees could put such ideology aside.
President Bush has indicated that he will not use social policy litmus tests in selecting judicial nominees, including nominees for the Supreme Court. Rather, he is focusing on qualifications, temperament, integrity, and a commitment to the rule of law. This, I be- lieve, is consistent with the approach that our Founding Fathers envisioned and that the American people expect. I hope that my colleagues in the Senate will follow the same principles in their advice and consent role in confirming nominees.
In addition to the philosophical importance of judicial restraint to our system of govern- ment, and to the wide public support for an independent judiciary, there is also a very practical reason to keep politics out of the confirmation process: No one quite knows how to assess politics in this context.
Take, for example, the hearing held in 1990 concerning the nomination of then-Judge David Souter for the Supreme Court. At that hearing, Kate Michelman, Executive Di- rector of the National Abortion Rights Action League, testified that "the Supreme Court is on the very brink of taking away an established fundamental constitutional right" and that "we are just one vote away from losing our right to choose." Ms. Michelman said she had "conducted a thorough and searching examination of his record" and concluded that she was "intensely concerned that, if confirmed, Judge Souter would destroy 17 years of precedent and cast the deciding vote to overrule Roe v. Wade (1973)." I argued that Judge Souter would be fair and would follow precedent. As everyone knows, the holding in Roe v. Wade has not only been upheld but also expanded since then, and Jus- tice Souter has proven to be a very reliable vote for the pro-choice position.
Ms. Michelman is certainly not alone in being unable to use a nominee’s political views (or perceived political views) to predict how that nominee will rule on future cases once confirmed to the bench. Indeed, history is replete with examples of judges who surprised even the very presidents who appointed them. President Eisenhower nominated Liberal icons Earl Warren and William J. Brennan, Jr.; President Nixon nominated Harry A. Blackmun, the author and defender of Roe v. Wade; and President Ford nominated John Paul Stevens, whom some consider to be the Court’s most Liberal Justice. And two of President Reagan ’s nominees, Sandra Day O’Connor and Anthony M. Kennedy, have voted repeatedly with Justice Souter to uphold Roe v. Wade.
It is even problematic to characterize the Supreme Court itself. It is fashionable in some circles to refer to the current Supreme Court as "Conservative," and to conclude, de- spite evidence to the contrary, that the change of one justice will inevitably result in a seismic shift in the Court’s decisions. But a thorough review of cases demonstrates that the Rehnquist Court defies labeling and is marked instead by shifting and often unpre- dictable coalitions. In fact, while many Conservatives expected that Reagan and Bush appointees would turn back Warren-era precedents, the reality is that major precedents have not been overturned. Even the Washington Post noted, in an article after the major decisions of Summer, 2000, were handed down, that the Court "mixes its high-profile messages." What this illustrates is that history often proves wrong those who seek to label the political ideology of individual judicial nominees as well as courts as a whole.
In sum, we must not make the historic mistep of injecting political ideology into the con- firmation process. Instead, we ought to renew our traditional focus on evaluating compe- tence, fairness, integrity, and–above all–a commitment to enforcing the Constitution and laws of this country, as promulgated through our constitutional democracy.
More on Appointment of U.S. Federal Judges
Legal Issues, Lawyers, & America's Judiciary
Orrin G. Hatch, Republican member of the U.S. Senate and representing the State of Utah in that body, serves on the Joint Committee on
Taxation, the Select Committee on Intelligence, and the following standing committees of the Senate: Judiciary, Finance, and Indian Affairs.
Senator Hatch presented the foregoing statement, on June 13, 2003, before the Subcommittee on Administrative Oversight and the Courts,
U.S. Senate Committee on the Judiciary.
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