An Online Journal of Political Commentary & Analysis
Volume V, Issue # 218, August 27, 2003
Dr. Almon Leroy Way, Jr., Editor
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By C. Boyden Gray

Should political ideology matter when the President and the Senate consider appointment of a particular person to fill a vacancy on a federal court? I can answer that question in one word: No. The only legitimate question on this subject--from the White House, the Senate, the Judiciary Committee, or an individual Senator--pertains to the proper con- stitutional role of a federal judge. The question is very simple: "What is the proper role of a federal judge, or of the federal judiciary?" If the nominee's answer is "to interpret and apply the law," or words to that effect, then you have a nominee who understands the limited role of a judge. If, on the other hand, a nominee views the judiciary as a ve- hicle for favoring particular interest groups or particular outcomes, then the nominee is unfit to be a judge and should consider running for legislative office instead.

Historically, judicial nominees have not been asked about their views. There simply were no hearings on judicial nominees until 1925. Even then, the hearings were perfunctory affairs for decades. When Byron White was nominated to the U.S. Supreme Court in 1962, the Senate Judiciary Committee asked him eight questions and the hearing lasted 15 minutes.

In 1981, Senator Edward M. Kennedy defended Sandra Day O'Connor's refusal to an- swer questions about her views on abortion. He said, "It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philos- ophy."

As I said earlier, I think there is one legitimate test of judicial philosophy. But, if the Senate--or the White House--asks overly specific questions, they threaten the independ- ence of the federal judiciary by seeking advance commitments to rule certain ways in particular cases. In fact, the questionnaire that the Judiciary Committee sends to judicial nominees before its hearings makes clear that this is an unacceptable practice. The questionnaire asks, "Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue, or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such case, issue. or question? If so, please explain fully."

Very early in the first Bush administration, when I was White House Counsel, I met with Judiciary Committee Chairman Joseph R. Biden and Senators Kennedy, Orrin Hatch, and J. Strom Thurmond. Senators Biden and Kennedy made it very clear, with Senators Hatch and Thurmond nodding in agreement, that a nominee would not be confirmed if the White House were caught asking questions about specific issues or cases.

Both Republicans and Democrats have been accused of using unfair, politically driven litmus tests in nominating or confirming judges. The criterion I have outlined is the clos- est thing to a proper litmus test because it only considers whether the nominee under- stands the proper constitutional role of an unelected federal judge, which in turn indi- cates whether he or she understands the American system of self-government. In our constitutional representative democracy, decisions on major political issues should be made by the people and their elected representatives, not by unelected judges. This has been the prevailing and respectable point of view since our nation's founding. The al- ternative view--that judges can make decisions freely, without being constrained by the language of the U.S. Constitution or duly enacted statutes--is an extreme position shared by almost no one. That's the view that should be described as extremist, because it lets judges do whatever they want, regardless of what the law says, and that should frighten Americans on both ends of the political spectrum. As Thomas Jefferson cautioned, if judges were allowed to interpret the law to be what they wish, the Constitution would be "a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."

Some organizations and individuals have urged the Senate to just say no to judges nomi- nated by a President of the other party. Before President George W. Bush was even inaugurated, before a single judge had been named or nominated, one group said it would fight so hard against his judicial nominees that "it will be scorched earth. We won't give one lousy inch." That hasn't been the historical approach, and I urge you to reject this political warfare. It threatens judicial independence at its most vulnerable and fundamen- tal core.

During the twelve years of the Reagan-Bush era, Democrats controlled the Senate half the time. Yet the Senate confirmed 382 of President Reagan's judicial nominees and 191 of President Bush's nominees. During Bill Clinton's Presidency, Republicans controlled the Senate for six out of eight years, but they confirmed 377 of President Clinton's judi- cial nominees. It's safe to say that Republicans disagreed with the political preferences of many of these judges, but they voted down only one judge. And that is appropriate; rejections should be rare. Alexander Hamilton said in the Federalist Papers that judicial nominees should be rejected only for "special and strong reasons."

Ideology and party identification have never been very good benchmarks for ascertain- ing how a judge will decide future cases in controversial areas. There are seven Repub- lican appointees on the current Supreme Court. Two of them are among the most Liberal justices of the century, and most of them have supported the Court's decisions upholding Roe v. Wade and striking down state partial birth abortion statutes. One such appointee --Chief Justice William Rehnquist--supported the Miranda decision, and at least two Conservative members of the bench render broad definitions of the procedural protec- tions under the Fourth Amendment and are inclined to support greater judicial scrutiny of administrative agency action. Presidents, no doubt, try to identify nominees who will defend the White House's prerogatives, but history proves that such efforts are often pointless. Justice Oliver Wendell Holmes, for example, ended up thwarting the antitrust policies of the president who nominated him--Theodore Roosevelt. And, finally, justices do not always live up to the "Liberal" label they receive. Toward the end of his career, the justice for whom I clerked--Chief Justice Earl Warren--invoked federalism principles that might be considered "Conservative" today.

But, even if you reject the proposition that ideology is not a good gauge, ideological in- quiries are perilous because of the message they send to the public at large. If Senators focus on the results or outcomes in particular, people will simply view the judiciary as another political [policy-making] institution. Under this setting, law is just politics by other means.

One commentator recently has suggested that the country needs some activist judges on the bench to maintain some balance. After all, the last election was close, so the courts should "reflect the nation's profound ambivalence." Well, I don't know if we want to appoint profoundly ambivalent judges. After all, it's not uncommon for the White House and the Senate to be in the hands of different political parties, and we've never appor- tioned judicial seats on the breakdown of the vote in the last election. The Constitution assigns the appointment power to the President, and I think it's clear that the advise and consent role of the Senate does not include a pre-nomination function.

In conclusion, the key criterion for judging a potential judge is not ideological, but phil- osophical and constitutional: Does the nominee have the integrity to recognize the lim- ited role of a judge and leave legislating to the legislators?

Appointment of U.S. Federal Judges

More on Appointment of U.S. Federal Judges

Legal Issues, Lawyers, & America's Judiciary

The foregoing analysis of the relevance of political ideology to selection of federal judges was presented by C. Boyden Gray, on July 26, 2001, as testimony before the U.S. Senate Judiciary Subcommittee on Administrative Oversight and the Courts.

Gray is a law partner with Wilmer, Cutler & Pickering, Chairman of the section of Ad- ministrative Law and Regulatory Practice of the American Bar Association, Chairman of the Committee for Justice, and a major contributor to the Republican Party, U.S.A. Gray has served as Chairman of Citizens for a Sound Economy, head of the Alliance for Rea- sonable Regulation, Counsel to President George H.W. Bush (1989-1993), Co-Chair of the Air Quality Standards Coalition, board member of the Federalist Society, and mem- ber of the Bush-Cheney Transition Department of Justice Advisory Committee. He is the recipient of the Presidential Citizens Medal and the Distinguished Alumnus Award of the University of North Carolina Law School.

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An Online Journal of Political Commentary & Analysis

Dr. Almon Leroy Way, Jr., Editor

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