IDEOLOGY & THE APPOINTMENT OF FEDERAL JUDGES:
THE POSITION OF THE INSTITUTE FOR JUSTICE
By Clint Bolick
We have always asserted, in Democratic and Republican administrations alike, that the U.S. Senate's advice and consent role should be both robust and principled. At the same time, the President is constitutionally entrusted with the authority to nominate federal judges; and in past administrations, the Senate has accorded due deference to the President to nominate judges who reflect his philosophy. To preserve the independence of the judiciary and to keep the confirmation process moving, the Senate has focused primarily on the qualifications and judicial temperament of nominees to district and ap- pellate judgeships, confining questions about ideology to nominees' ability and willing- ness to abide by the constitutional oath and adhere to the rule of law.
What we are now seeing is an effort by Leftwing advocacy groups, like People for the American Way and the Alliance for Justice, to elevate political ideology to an unprece- dented level of consideration. They seek to manipulate the Senate into abandoning its traditional role and bringing the judicial confirmation process to a halt, solely on the grounds that the President is nominating highly qualified judges who share his philoso- phy. And I fear that this hearing, far from exploring important philosophical issues, is really an attempt to place an academic fig-leaf on a partisan and fiercely ideological campaign of judicial obstructionism.
Although my organization is keenly interested in the composition of the federal judiciary, I want to state at the outset that the Institute for Justice did not oppose a single judicial nominee during the eight years of the Clinton administration. That is emphatically not because the Clinton administration nominated only moderate judges. To the contrary, Clinton's judicial appointees as a whole, and especially his appointees to the U.S. Su- preme Court, have been demonstrably more Liberal than the judges appointed by Pres- idents Reagan and Bush.
Rather, the reason that we refrained from opposing Clinton judicial nominees is self-re- straint. We believe that it is essential to the integrity of our organization to choose our battles carefully. For nominees to judgeships in U.S. District Courts and U.S. Courts of Appeals--whose decisions are subject to review by higher courts--our touchstone is whether a judicial nominee is so extreme that his or her willingness and ability to enforce the rule of law is seriously called into question.
That is not just our touchstone. It reflects the same approach that the U.S. Senate has traditionally taken toward lower court judgeships for 200 hundred years. The approach was summed up in 1994 by Sen. Joseph Biden, who articulated three attributes that he would consider for nominees to District Courts and Courts of Appeals:
First, that the nominee has the capacity, competence, and temperament to be on the Court of Appeals or a trial court.
Second, is the nominee of good character and free of conflict of interest?
Third, would the nominee faithfully apply the U.S. Constitution and the precedents of the U.S. Supreme Court?
If they meet those three tests, assuming they are not on the ideological fringe and they are not eccentrics or fanatics who are so out of the mainstream that you question their competence, character and/or temperament, then it seems to me they should be given an opportunity to occupy the seats for which they have been nominated.
This approach reflects well the respective constitutional roles given to the President and the Senate--the President to make nominations and the Senate to advise and consent. At a time of divided government, the system would grind to a halt if the Senate refused to confirm nominations based on mere philosophical differences between senators and the President. Historically, and continuing in recent years, Republican-controlled Senates have confirmed the vast majority of Democratic administration judicial nominees and vice-versa. If we are contemplating a sea-change from traditional practice to a situation in which the Senate delays or denies confirmation to well-qualified, mainstream judicial nominees on differences of philosophy--or, more egregiously, to the ideological whims of a single senator withholding a "blue slip"--we had better contemplate the serious conse- quences. As Senator Patrick Leahy declared in 1997, "Those who delay or prevent the filling of [judicial] vacancies must understand that they are delaying or preventing the administration of justice."
Not only will such tactics paralyze the confirmation process--creating or exacerbating a judicial crisis--but it will create an entirely new rule for future confirmations. Democrats have accused Republicans of holding up judicial confirmations during the Clinton admin- istration, notwithstanding the fact that 377 judges (almost half the federal judiciary) were confirmed during that time. The point is that judicial confirmations have taken longer in each succeeding administration, leading us to the point of judicial crisis. Adding greater ideological scrutiny to the process will slow it down even further.
That comes, remarkably, at a time of relative public quietude regarding the federal ju- diciary. Americans seem satisfied with their courts. And for good reason: The era in which activist judges were taking over school and prison systems, imposing judicially created taxes, creating welfare rights, and letting criminals out on technicalities seems largely behind us. Whenever the public perceives that the judiciary is straying too far from the public consensus--whether in the heydey of the Warren Court or when the Rehnquist Court seemed poised to overturn Roe v. Wade--it can and usually does pro- duce a democratic correction. In the election of 2000, Vice President Al Gore tried gamely to make an issue of judges, but to little avail, failing to convince a majority of the voters that Republican presidential candidate George W. Bush, if elected President would nominate far out Rightwing extremists and reactionaries to fill vancies on the federal courts. Recent public opinion has been to the contrary. In early 2001, the New York Times, found that a majority of Americans believed that President Bush would appoint judicial nominees who were about right. (Some respondents to the poll thought his nominees would be too Liberal!)
And indeed, President Bush's record so far is remarkably good. His first group may comprise the most highly qualified group of judicial nominees ever put forward at a single time. They are a bipartisan group and richly experienced as judges or attorneys. The American Bar Association--whose ratings have been referred to by several Democratic senators as the "gold standard"--have given "qualified" or "well-qualified" ratings to every nominee evaluated so far. In terms of judicial philosophy, several of the nominees have argued numerous cases in the Supreme Court and compiled stellar winning records, demonstrating that they are well within the mainstream of American jurisprudence.
Nor will the nominees significantly alter the balance in the judiciary. Roughly half the federal judiciary are Republicans and half are Democrats. Most of the current retire- ments are from Republican judges.
But balance is not what the Leftwing advocacy groups are after. They want to post a sign outside the door of the federal courthouse reading, "No Conservatives need apply." They want this Senate to do their bidding, denying confirmation to anyone who does not share their activist agenda. That these groups are themselves anywhere near the "main- stream" of public opinion is laughable. The Senate should not take its lead from such groups.
Nor should it seek to do so indirectly by attempting to clothe judicial obstructionism with an academic veneer. With due and tremendous respect to Professor Tribe and Professor Sunstein, their writings have not been aimed at greater objectivity or balance in judicial confirmations, but at creating a more Liberal Leftist judiciary in accord with their own philosophical predilections.
Their real complaint is with the U.S. Supreme Court, which they characterize as an ac- tivist Rightwing Conservative Court. They do not disdain judicial activism in general-- surely they applaud many of the activist cases of the Warren era--but they dislike a Court that will rein in other branches of government to vindicate principles such as fed- eralism, equality under law, and private property rights. Of course, the Supreme Court cannot rein in government if government itself is not testing the boundaries of activism; and it is precisely the role of the judiciary--articulated most eloquently by Alexander Hamilton in Federalist 78--to ensure that the other branches of government do not over- step their constitutional boundaries. Moreover, we need to keep all this in perspective: After all, this is the Court that struck down laws prohibiting flag desecration; that inval- idated Virginia Military Institute's ban on female students; that struck down Colorado's initiative prohibiting gay rights ordinances; and that placed the right to an abortion on firmer constitutional ground. These are not hallmarks of a "Righwing" Court, although Conservative justices voted with the majority in all of those decisions. (1)
The bottom line, though, is that the Liberal Leftist academics' advice is a recipe for par- tisan and ideological gridlock. Sometimes gridlock is good, but not when it paralyzes the judiciary, whose role in protecting fundamental individual liberties is central to our con- stitutional system. In the Summer of 2001, there were over 100 judicial vacancies. About one-third of them were classified as judicial emergencies. As each day passed, the spec- ter of judicial obstructionism became ever-greater a populist issue, with an appropriate threat of popular backlash.
Facing the threat of gridlock, a Task Force on Federal Judicial Selection, in the year 2000, issued a report entitled Justice Held Hostage: Politics and Selecting Federal Judges. The Task Force was remarkably bipartisan, including such Liberal luminaries as Professor Norman Dorsen and Elliot Mincberg of People for the American Way. Among other things, the Task Force found that the Senate "should make it a high priority to take final actions on nominees in a more expeditious manner." It specifically decried the blue-slip process, which "should not be allowed to undermine collective decision-making in an open, deliberative process." It urged nominations within 180 days of vacancies and confirmations within 60 days of nominations. By moving nominations to a prompt vote by the full Senate, we could have a robust and open debate about ideology in judicial nom- inations and about individual nominees' philosophies. And, in the end, I am confident that we would have the vast majority of judges confirmed.
The Institute for Justice will continue to remind the public of comments that have been made about the judicial crisis and the proper role of the Senate during the Clinton ad- ministration. We will work to alert the public to the existence of a de-facto judicial blockade, if one is imposed by the Judiciary Committee. And, of course, we will continue to make our most reasoned and passionate arguments in support of nominees who have manifested a commitment to the rule of law and the principles of a free society.
In the meantime, we will see what emerges in the Senate. Will this be a time of states- manship? I hope that this hearing will lead us in that direction, but I fear it is a step in the direction of ever more-rancorous partisanship.
1. Our report, State of the Supreme Court 2000, can be found on the Institute for Justice website at www.ij.org. We find that the Rehnquist Court has compiled an excellent overall record on protecting individual liberties.
Appointment of U.S. Federal Judges
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The foregoing statement was presented by Clint Bolick, on June 26, 2001, as testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts.
Clint Bolick is Vice President and National Director of state chapters at the Institute for Justice, a Libertarian public interest law firm which he co-founded in 1991 to engage in constitutional litigation protecting individual liberty and challenging the regulatory social welfare state. Receiving his law degree from the University of California at Davis in 1982 and his Bachelor's degree from Drew University in 1979, Bolic has become a rather successful legal pioneer in such areas as defense of school choice programs, seeking in- creased judicial scrutiny of racial classifications in public employment and inter-racial adoptions, and development and pursuit of a legal strategy to restore judicial protection of economic liberty and judicial invalidation of regulatory barriers to free enterprise. He is author of Voucher Wars: Waging the Legal Battle Over School Choice, which is his latest book, published by the Cato Institute in the Spring of 2003.
The Institute for Justice is located at 1717 Pennsylvania Avenue., NW, Suite 200, Washington, DC, 20006. The Institute has an Internet
website at www.ij.org
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