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Volume V, Issue # 219, August 28, 2003
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By Professor Stephen B. Presser

I appear before you today, at the invitation of the U.S. Senate Committee on the Judi- ciary, to help you consider the role of ideology in the judicial selection process.

Ideology & Judicial Philosophy:

We should first try to understand what is meant by "ideology" in the context of these hearings. The word has a variety of definitions, but I will adopt one simple one from the dictionary, "a systematic body of concepts, especially about human life or culture." (1) It might also be helpful, initially, to draw a distinction between what we might describe as an ideology of substance or results, and an ideology of process. An ideology of results might be an appropriate means of evaluating the elected officials in a government, par- ticularly those in the executive and the legislature, but an ideology of process would be a more important means of evaluating the behavior of the judiciary. We speak about such an ideology of process when we discuss what we more commonly refer to as "judicial philosophy," and it is that we are really concerned with in these hearings.

The question of the appropriate judicial philosophy for our country is one of the most crucial concerns for determining the fate of our Republic, and thus I regard this hearing as among the most important I have been invited to attend. You have heard and will be hearing from a variety of witnesses from the academy, from law practice, and from the political arena, and perhaps I can best serve you by sticking primarily with the perspec- tive of the Framers of the U.S. Constitution--the perspective that I know best.

The Framers believed that it was important, from time to time, to return to first princi- ples, and that is what we are doing this morning. The two basic principles of the Ameri- can political system are the sovereignty of the people and the rule of law, and both figure intimately in the question of judicial philosophy. As I understand it, there is only one judicial philosophy of which the Framers' approved, and that is to be found in Federalist 78, the famous justification for judicial review written by Alexander Hamilton in 1788. (2)

The Judicial Philosophy Suggested in The Federalist:

Alexander Hamilton had to respond to critics of the proposed Federal Constitution-- critics who were concerned that the Constitution would give too powerful a role to federal judges, and that, in particular, federal judges might use their great power to impose their own view of what the law should be on the American people. The critics of the Constitu- tion were particularly worried that federal judges might obliterate the authority of the state courts and the state governments, and replace the recently achieved independent role of the states as primary domestic lawmakers with an all-powerful central govern- ment. (3)

Hamilton responded to this criticism by emphasizing that it was not the job of judges to make law, that their role under the Constitution was simply to enforce the Constitution and laws as they were written, according to their original understanding. By doing so, Hamilton explained, federal judges would be acting as agents of the sovereign people themselves, and would do their part in implementing the rule of law. It was true that judges might sometimes be called upon to declare statutes invalid because of the dictates of the Constitution, that is, to declare, in the words we use today, that particular laws were "unconstitutional," but their role in implementing the will of the people as set forth in the Constitution required no less. The Constitution itself set certain limits on what legislatures could do, Hamilton explained, and when the legislatures exceeded those limits, they ceased to act pursuant to the will of the people. Instead of being the agents of the people, as the Constitution dictated, in such circumstances, the legislature would wrongly be exercising greater power than was authorized. It was then the job of the peo- ple's other agents, the courts, to reign in the legislatures. (4)

When that kind of judicial review was done, Hamilton explained, the courts would not be exercising "will," but merely "judgment." (5) The only will that was important was the "will" of the sovereign people themselves, as set forth in the Constitution, or laws passed pursuant to the Constitution, and the only job of judges was to enforce that ex- pression of the will of the people. Hamilton's justification for judicial review, based on the sovereignty of the people, also implemented another important political ideal of the Constitution's Framers, the separation of powers. It was well understood, pursuant to the theories of the Baron de Montesquieu, as valid then as they are today, that liberty could not be preserved unless judges were barred from legislating, law-making was left to the legislature and the people themselves, and the executive did no more than carry out the directives of the legislature and the Constitution. As Hamilton wrote in Federalist 78, quoting Montesquieu's Spirit of Laws, "there is no liberty if the power of judging be not separated from the legislative and executive powers." (6)

The Judicial Philosophy Favored by President Bush:

Considering what Hamilton had to say in Federalist 78, and considering what Montes- quieu wrote, we are in a better position to understand the questions that are before this subcommittee today. We are here, basically, because of certain campaign promises that then Governor Bush made when he was running for the office he now holds. He ex- plained that he wanted to appoint judges who would interpret the law rather than make it, and he further explained that his models for the type of judge he would appoint were the current Supreme Court Justices Antonin Scalia and Clarence Thomas. (7) These two are the justices on the court who have been most closely associated with the interpretive philosophy of effectuating the original understanding of the meaning of the Constitution, and these two, it would seem, are those who come closest to most consistently demon- strating the judicial philosophy Hamilton limned in Federalist 78. (8)

There have been suggestions in the press, and it is likely that there will be testimony offered to you, that more judges like Scalia and Thomas would somehow represent a danger to our Republic, that they have some sort of "Far Rightwing" political agenda, that they are dangerous judicial activists who would, if multiplied, pose a fundamental danger to our civil rights as Americans. Nothing could be further from the truth. There can be no danger posed by men and women who conceive of the judicial role as Hamilton conceived it, as implementing the will of the sovereign people. George W. Bush summed up his perspective on judicial appointments when he indicated, "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. Paraphrasing from The Federalist, Bush stated that "the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference." (9)

If this is the judicial philosophy, or the ideology, of President Bush's likely appointments, surely there is no terror in it. This is the traditional manner of interpreting the Constitu- tion and laws, and it is all that Scalia and Thomas, and, indeed, many other federal judges, past and present, have had as a judicial philosophy. In this philosophy or ideology there is no danger, unless one fears fidelity to the rule of law itself. And, it should be emphasized that, in our Republic, the rule of law is nothing more than the demonstrated will of the people. Hamilton stressed that it took a person of "fit character" to be a federal judge, and that such people could not be found in great numbers. They had to possess not only great knowledge of the law but also to possess the courage of their convictions and the ability to resist popular pressures that might lead them to ignore their constitutional duties. Indeed, it is important for us to remember here that the Framers were well aware that judging in a manner consistent with the rights guaranteed by the Constitution could be an unpopular course when passions were aroused, and thus Hamilton believed that steps were necessary to make federal judges as independent as possible. That's what lifetime good behavior tenure was designed to ensure, and that's why the provision against reducing judicial salaries was placed in the Constitution.

Advising and Consenting with Regard to Judicial Nominees:

This hallowed legislative body, the United States Senate, exercising its constitutional advice and consent function, must constantly be on guard against those who would seek to influence the judiciary for particular partisan purposes, and who would seek to move the judiciary from its constitutional role as a neutral arbiter of the laws and the Consti- tution. Unfortunately, many comments, even some made in these hearings, seem calcu- lated politically to manipulate the judicial selection process, and seem designed to frustrate the appointment of judges who might refuse to follow a politically popular course when the Constitution and laws might provide otherwise.

It is important to understand just how the Framers conceived of the senatorial role in ad- vising and consenting on judicial nominees. This is discussed by Alexander Hamilton in Federalist 76, where he indicates that the scheme of delegated power under the Consti- tution rests upon the implication "that there is a portion of virtue and honor among mankind which may be a reasonable foundation of confidence" in public officials . (10) Making even clearer that, in the appointments process, the Senate should be concerned primarily with the virtue and honor of candidates, Hamilton explicitly indicates that the concurrence of the Senate is required for appointments under the Constitution in order to be "an excellent check upon a spirit of favoritism in the President, and to tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." (11)

Hamilton also notes that the scheme of Senate approval will reduce the chance that ap- pointments will be made by the President simply on the basis of "his private inclinations and interests." (12) As far as I know, no one has suggested that these are President Bush's motives, and I find it impossible to understand how a pledge to appoint judges who will operate pursuant to a judicial philosophy that implements popular sovereignty and the rule of law could be the abuse of presidential power Hamilton had in mind. In- deed, judges faithful to the Constitution and laws, of a kind that President Bush pro- poses, are the possessors of the kind of wisdom, honor, and integrity Hamilton thought crucial in nominees.

The Senate has a role to play in ascertaining that those appointed to the judiciary are "fit characters," and persons of integrity, honor, and virtue. But if Hamilton's comments in Federalist 76 and Federalist 78 mean anything, they mean that the Senate should not use its own partisan political preferences for the production of particular results in the courts, as opposed to the following of proper procedures for determining the law, as a litmus test for judicial appointments. The Senate should not use partisan political ide- ology to select judges; instead, the Senate should insist on proper judicial philosophy for nominees. Indeed, the genius of the separation of powers in America, I have come to understand over three decades of practicing and teaching law, is that law is supposed to be different from politics, and liberty and rights in this country are best protected by maintaining that separation.

It worries me, then, when I read, in the press, suggestions that the Senate should be on its guard against Bush's judicial nominees because they are "Rightwing ideologues" or "judicial activists" who would present a danger to the enforcement of our precious constitutional heritage, or our civil rights. (13) It is common for Democrats to accuse Republicans of being tools of the "Far Right," and for Republicans to regard Democrats as "Leftwing" extremists, but these political terms of excoriation obscure, rather than illuminate, what is at stake when judicial appointments are being discussed.

Alas, even though some Senators have tried to suggest that what they want to see is "Moderates" appointed as judges, I don't think even that term is useful here. (14) The idea of judicial "Moderates" is not merely obfuscatory because in politics the "Moder- ates" are always you or the people you agree with, while your opponents are always "extremists." The real problem is that judicial "moderation" in implementing the will of the people may not be a virtue. The issue here is not Left or Right, Radical or Reaction- ary, or even Liberal or Conservative; the issue is the separation of powers under the Constitution, and whether a nominee adheres to it or not. One who believes in adherence to the Constitution, is of course, in a sense a Conservative, since he or she is conserving constitutional values . Still, one who conserves constitutional values and the separation of powers, as Montesquieu pointed out, is also a Liberal because he or she is preserving the liberty that can only exist where judges do not legislate.

Nothing to Fear from the President's Judicial Philosophy:

It cannot be denied that there are substantive elements involved in the current struggle over judicial appointments. We all understand, I think, that there is a partisan divide over issues that could well be described as ideological, even if the proper judicial phi- losophy should not be a subject of partisan rancor. The fear of those who now seek to block President Bush's appointments is that, if he is permitted to nominate judges of a philosophical bent close to those of Thomas and Scalia, they will participate in decisions that will bar affirmative action, interfere with the separation of church and state, and outlaw abortion. I understand those fears, but I do not share them for two reasons. First, I think that Thomas and Scalia's perspective on these issues is in accord with the original understanding of the Constitution, and, second, I think that any new judicial appoint- ments on the lower federal courts, or even on the United States Supreme Court, would be unlikely significantly to alter the law regarding these topics.

With regard to the first point, Thomas and Scalia have indicated what appears to be a belief in a color-blind constitution, an understanding that any governmental discrimina- tion on the basis of race ought to be prohibited. This, I think, is the perspective of Dr. Martin Luther King, who believed that we should judge persons by the "content of their character," and not "the color of their skin," (15) and, indeed, that was the goal of the Fourteenth Amendment itself. The Fourteenth Amendment after all, is couched in terms of "equal protection of the laws" not special advantage. This is not a radical or reac- tionary perspective, it is simple equality, or, perhaps, "Simple Justice." (16)

Thomas and Scalia have been reluctant to follow some of their brethren in broadly con- struing the establishment clause to bar all official involvement with religion, as they did, for example, when they dissented from a 1992 ruling that barred non-sectarian prayer at a middle school graduation (17) and from a more recent ruling regarding student prayer at a high school football game. (18) In doing so, of course, Thomas and Scalia were merely following centuries of American tradition, which emphasized the role of the sacred in undergirding American government and life. More importantly, they were emphasizing that in matters of religion, the constitutional scheme barred the federal government from establishing a national sect, but left the state and local governments free to promote the policies they deemed proper.

This was the same perspective that animated and animates Scalia and Thomas's posi- tions on the issue of abortion. They believe that this is not a question that the Federal Constitution addresses, and that the matter is best left in the hands of state govern- ments, where the Constitution originally placed it. (19)

This last set of concerns may also help us understand what causes the anxiety over the President's potential nominees. For most of the past sixty-four years there has been a tendency on the part of the federal government to extend its regulatory reach, and for the federal courts to support such expanded federal power. We have seen, in recent years, some signs of willingness on the part of the Supreme Court to once again remind us that the powers of the federal government are limited and enumerated, and to mani- fest this willingness by declaring some federal statutes unconstitutional on the grounds that they exercise powers not granted to Congress. (20) Because I believe that the original constitutional scheme was to make the state and local governments the primary exercisers of legislative power, I don't find this worrisome, but those who believe that the federal government ought to be the exclusive guarantor of our rights might disagree. I can't sympathize with that view, because I believe, as the Framers did, that the most important right of the people is to legislate for themselves, and I believe that this is best done by the governments closest to the people, except in matters of clearly national concern.

This right of the people to legislate for themselves, is, of course, the same thing that is involved in the Constitution's mandating of the separation of powers, and in the wish of President Bush that judges not legislate. But to return to the reasons not to fear the Bush nominees. Even if the President were to be successful in getting through the Senate precisely those nominees of his choosing, and the nominees most committed to the original understanding and the belief that judges should not legislate, it is by no means clear that any, much less all of the constitutional principles said to be endangered would be overturned.

The first point that needs to be made in this regard is that predictions of what people will do when they ascend the bench are notoriously inaccurate . President Madison appointed Joseph Story, thought to be a firm Jeffersonian, who turned out to be Marshall's staunchest ally on the Supreme Court bench, and, for all practical purposes, a committed nationalist. (21) President Dwight Eisenhower was frequently quoted as saying that he only made two mistakes as President and that they were both sitting on the United States Supreme Court. He was referring to his appointments to the court of William Brennan and Earl Warren, because they proceeded to decide cases in a manner with which he apparently thoroughly disagreed. (22) Most recently Justice Souter seems to have evolved a constitutional jurisprudence clearly at odds with the first President Bush's asserted preferences for judges who would interpret the Constitution according to the original understanding. It is for this reason--the unpredictability of judicial performance --that the safest course is probably to focus on the competence, integrity, virtue and honor of nominees, since these seem to be qualities least subject to change over time, and least affected by becoming judges.

The second point regarding the lack of danger posed by Bush nominees to current con- stitutional doctrines is related somewhat to the first, and is the difficulty of judges of any stripe in overruling established law. It is perhaps significant that the Supreme Court's 1992 ruling, in Planned Parenthood v. Casey, (23) which upheld Roe v. Wade, (24) the case finding in the 14th Amendment an unenumerated right under some circumstances for termination of pregnancies, was made by a Court that included 8 Republican ap- pointments, and the five-person majority in that case were all Republican nominees. Indeed, most recently, the Supreme Court, which, at this writing has seven Republican nominees and two Justices nominated by a Democratic President, found that a state statute banning partial-birth abortion failed to pass constitutional muster. (25) The em- pirical case that Republican appointees are a danger to the legality of abortion simply has not been made. Similarly composed Supreme Court majorities have upheld decisions involving affirmative action and applying the First Amendment strictly to separate state and local government from religion, though narrow majorities have also sought to give religious organizations the same free-exercise of speech rights as secular organizations, but this should hardly be cause for worry by the friends of free expression.

A final point to be made about the limited power of potential Bush nominees is that judges adhering to the original understanding, or those committed to exercising judgment rather than will, or those who know that it is the job of a judge to interpret rather than to make law, if placed on lower federal courts will follow the dictates of the United States Supreme Court. There is no more basic principle of our federal judicial system than that which binds the U.S. Courts of Appeals and the U.S. District Courts to follow the inter- pretations laid down by the U.S. Supreme Court. As long as that Court adheres to cur- rent doctrines regarding abortion, race or religion, Bush nominees to the lower federal courts will follow them.

Conclusion--Preserving Learned Hand's "Common Venture":

I do not suggest that the law or even the Constitution should not change over time, as the needs of the American people shift with economic, political, or social development. Such change, however, in our system, is supposed to come from legislatures or from constitu- tional amendment; and not through judges acting as legislators. As Learned Hand, per- haps the greatest judge never to sit on the Supreme Court, remarked, inveighing against the notion that members of that Court should make law:

    "For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course, I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture." (26)

I urge this subcommittee and the Senate as a whole to preserve that "common venture," the exercise of sovereignty by the American people, and their right to make their own laws and Constitutions. The philosophy of judging outlined by President Bush is no dan- ger to that popular sovereignty. It is the only means of implementing it and the rule of law itself.


1. Merriam Webster's Collegiate Dictionary 575 (10th ed. 1996).

2. James Madison, Alexander Hamilton, and John Jay, The Federalist Papers 436 (First published 1788, Penguin Books Reprint, 1987, Isaac Kramnick, editor)

3.   For a collection of the contemporary arguments for and against the Constitution, see generally Bernard Bailyn, editor, The Debate on the Constitution (New York: Library of America, 1993) (In two volumes).

4. Federalist 78, supra note 2, at 437-440.

5. Ibid., at 440.

6. Ibid., at 437.

7. See, e.g. David L. Greene and Thomas Healy, "Bush Sends Judge List to the Senate," Baltimore Sun, May 10, 2001, p. 1A (Indicating that the judges the President "admires most" are Antonin Scalia and Clarence Thomas.)

8.   For Scalia's statement of his judicial philosophy, see Antonin Scalia, Matter of Interpretation (Princeton University Press, 1997), and for Thomas's judicial philosophy see Scott Douglas Gerber, First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999).

9. Volume 37, Number 19, Public Papers of the Presidents (Remarks of President George W. Bush Announcing Nominations for the Federal Judiciary, May 14, 2001).

10. Federalist 76, in Madison, Hamilton, and Jay, supra note 2, at 431.

11. Ibid., at 430.

12. Ibid.

13. Even my friend and fellow-witness at this hearing, University of Chicago Law Pro-fessor Cass Sunstein, has been quoted as stating that "There is a danger the federal judiciary could be dominated by Rightwing ideologues." M.E. Sprengelmeyer, "Judge Nominee Called Extremist," Rocky Mountain News, May 10, 2001, page 24A.

14. For example, the Chair of this subcommittee, Senator Schumer, has been quoted as stating, "Judges [nominated by the President] will have to be moderate." See, e.g., Ron Fourier, "Switch Tarnishes Bush's Image," Chattanooga Times/ Chattanooga Free Press, May 25, 2001, pg. A1 (AP Wire Story).

15. The famous words are from Dr. King's "I have a Dream" speech, delivered at the Lincoln Memorial, in Washington, on August 28, 1963. See, e.g., Deborah Gillan Straub, African American Voices 211 (1996).

16. See, e.g., Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Random House, paperback edition, 1977).

17. Lee v. Weisman, 505 U.S. 577 (1992).

18. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

19. See, e.g. Planned Parenthood v. Casey, 505 U.S. 833, 1002 (Scalia, J., dissenting) ("We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.")

20. See, e.g. U.S. v. Lopez, 514 U.S. 549 (1994) (Holding unconstitutional the Federal Gun-Free School Zones Act, on the grounds that it was unauthorized by the Constitution's commerce clause), U.S. v. Morrison, 529 U.S. 598 (2000) (Holding, inter alia, that portions of the federal Violence Against Women Act failed to pass constitutional muster under the commerce clause).

21.For Story's career, see, e.g., R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Paperback ed., 1986).

22. See, e.g. Lawrence Baum, The Supreme Court 41 (3d ed. 1989).

23. 505 U.S. 833 (1992).

24. 410 U.S. 113 (1973).

25. Stenberg v. Carhart, 530 U.S. 914 (2000).

26. Learned Hand, The Bill of Rights 73-74 (Harvard University Press, 1958).

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 role of ideology in the judicial selection process was presented by Stephen B. Presser, on June 26, 2001, in testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts.

Dr. Presser is a leading American legal historian and the Raoul Berger Professor of Legal History at the Northwestern University School of Law, Chicago, Illinois. He holds a joint appointment with the Kellogg Graduate School of Management at Northwestern University, and also teaches in the History Department of Northwestern's Weinberg College of Arts and Sciences. He has been teaching and writing about American legal history for the last twenty-nine years. He is the senior author of a casebook on American legal history and the co-author of a book on constitutional law, a book on U.S. Supreme Court Justice Samuel Chase, and one on constitutional law theory. Dr. Presser is frequently an invited witness before committees of the U.S. Senate and House of Representatives on issues of constitutional law.

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