Let's get ideological Selecting judges

...This unlovely mix of hypocrisy, sanctimony, and phoni-ness is a reaction to the 1987 battle over the Supreme Court nomination of Robert Bork, in which Democrats and their allies on the left used every means available to turn the nomination process into public theater (a strategy now known as "borking...

...Mark A. Sargent LET'S GET IDEOLOGICAL Breaking the judicial nominee logjam There is a lot of baloney in the fight in the Republican-controlled Senate over the nomination of Miguel Estrada to the United States Court of Appeals for the District of Columbia...

...Bruised by the bare-knuckle ideological fight over Bork, both sides usually insist that their support of a candidate is based not on "ideology" but on the nominee's obvious intelligence, sterling character, academic achievements, legal acumen and experience, and judicial temperament...

...The only thing both sides seem to agree on is that "ideology," whatever that is, should not contaminate the judiciary...

...There is a tendency to use "ideological" as the opposite of "open-minded," whereas a nonideological person is pragmatic and fair...

...All seven living former solicitors general (four of them Democrats) condemned this assault on the confidentiality of Justice Department deliberations...

...Taking these steps, however, would cut much of the baloney...

...Public theater became Grand Guignol in the 1991 fight over Clarence Thomas's nomination in which a witch's brew of conflict over character, race, and gender left both sides with a bitterness that has tainted the confirmation process ever since...

...A judge's positions on such questions constitute an ideology...

...Still, the code does not prevent a nominee from testifying about his theoretical approach to the abortion question or affirmative action, as well as his philosophy of constitutional interpretation and the balance of power between the federal government and the states...

...The debate over the confirmation should take place on frankly ideological terms...

...Franklin Roosevelt's court-packing plan was an attempted ideological coup...

...The exposure of the ideological foundations of the law made by judges' decisions will create greater transparency and accountability within the rule of law...

...The Democrats' filibuster against Estrada's silence, while naturally self-interested, may have the positive effect of helping to expose what our future judges really believe...

...Fourth, it follows that senators should be free to vote against a confirmation if they do not support a candidate's ideology...

...They have justified their filibuster by calling Estrada a "stealth candidate" or a "mystery" because the relatively young nominee, without a lengthy paper trail of political opinions or published writings, refused to provide answers at his confirmation hearings on constitutional and other legal questions...

...Of course, politicians will try to use the rhetoric of neutrality both to blunt ideological challenges and to assert their own high-mindedness, preferring to achieve their goals by indirection and coded language...

...Not really...

...First, everyone should stop using ideology as a dirty word...

...But it is an ideology and is obviously relevant to determining what sort of judge the nominee will be...

...made the Democrats look even sillier by an absurd demand for copies of internal memos Estrada wrote while at the Justice Department...

...The negative connotations of the word ideology, however, prevent us from understanding what it really means...

...That intellectual and moral formation will also deeply influence her views on fundamental issues such as the proper method of constitutional interpretation, the meaning of federalism, the relationship of church and state, and the limits of due process...

...The notion that all presidents should nominate only "nonideological" judges is conceptually incoherent and politically impractical...

...has claimed that the Democrats "don't want Miguel Estrada because he's Hispanic...

...President Bush's determination to appoint highly conservative, relatively young judges will push the ideological conflict to the surface...

...That ideology may be more or less coherent, self-conscious, or articulable, and it may lie at any point along left-right, liberal-conservative, or other philosophical axes...

...Certain practical consequences flow from recognizing that all judges have ideologies...

...Each nominee will have a fundamental intellectual and moral formation that will embody views about the nature of justice, the relative importance of the rule of law in an ordered society, the proper relationship of the public and private spheres, the role of government intervention in the marketplace, the extent to which law is constrained by morality and other guidelines...

...At least some of the drama in Bork's case, however, resulted from frank and honest debate about ideology...

...It is disingenuous for Estrada and other nominees on both sides to claim that the judicial role precludes them from testifying on that general level...

...President George W. Bush has condemned the Democrats' filibuster because Estrada's nomination has been pending for nearly two years and "fairness demands that he receive an up-or-down vote" as soon as possible...

...Yet the term's use masks a real confusion about what ideology means and what role it should play in the selection of judges...

...The assumption is that only some people have an ideology...

...Second, nominees should be prepared to articulate their ideology...

...Insisting on the myth of ideological neutrality in judging is undermining, rather than supporting, the credibility of the rule of law...

...Presidents have always done so...

...Third, presidents, whether liberal or conservative, should be free to nominate judges who reflect their ideological convictions...

...Acknowledge that every judge has an ideology, and hold her accountable for it...

...The insupportable claim that one is nonideological can amount to privileging one's own views as normative, natural, or necessary, while implicitly characterizing different positions as inauthentic, extreme, or false...

...John Marshall was named chief justice to entrench a Federalist as a bulwark against Jefferson-ian reaction...

...Another Clinton nominee, Helene White, spent four years fruitlessly waiting for a hearing...

...Circuit-Elena Kagan and Allen Syder, two lawyers as well qualified as Estrada-languish for eighteen and fifteen months respectively and then die on the vine...

...This after the Republicans let President Bill Clinton's nominations to the D.C...

...The Democrats are almost (although not quite) as full of baloney as the Republicans...

...The lesson that should have been learned from the Bork battle is that ideological debate is a good thing, not something to be avoided at all costs...

...The Democrats conveniently (or hypocritically) forgot that Ruth Bader Ginsburg also refused to answer important questions at her Supreme Court confirmation hearing, as did other Clinton nominees to lower courts...

...Nonetheless, the current shadow game cannot be sustained...

...For all of the coalition's high-sounding rhetoric about "fairness," "independence," and "balance" in the judiciary, there is no doubt that its real goal is the appointment of judges who share its positions on abortion, affirmative action, or the environment...

...George Washington appointed only federal judges who shared his view of the new Constitution...

...Now whenever control of the Senate changes, the parties switch roles as oppressor and victim, with the new victims conveniently forgetting how adamant they recently were in pushing their own agendas...

...It is, of course, inappropriate for a nominee to talk about how he would rule in a pending case or a case likely to appear before him...

...One of many games played in this nasty exchange of payback is the routine disclaimer of ideological motivation...

...All potential judges have an ideology, no matter how pragmatic, moderate, centrist, or unreflective they may seem...

...That paragon of racial sensitivity, Senator Trent Lott (R-Miss...

...The ideological cast of the federal judiciary thus inevitably will be heavily influenced by presidential politics, conditioned only by the Senate's power to confirm...

...Opponents to the nomination describe themselves as the proponents of competence and high qualifications, and describe the other side as ruthless ideologues, and vice versa...

...This coalition opposing Estrada is made up of more than thirty left-liberal groups ranging from the AFL-CIO to the NAACP to NARAL to Earthjustice...

...I recently received an e-mail from something called "The Coalition for a Fair and Independent Judiciary...

...More important, they prevent our appreciation of why ideology should be a central concern in the nomination of judges and a topic of frank discussion...

...Coy silence on the part of the nominee, and the expression of phony "concerns" about qualifications, experience, or judicial temperament should not be used as a proxy or a mask for the real debate about ideology...

...The American Bar Association's Code of Judicial Conduct prohibits judicial nominees from making "statements that commit or appear to commit the nominees with respect to cases, controversies, or issues that are likely to come before the courts...

...The quality of the judiciary depends on how the ideological battles play out...

...Would taking these steps mean that we would have a better judiciary...

...Senator Charles Schumer (D-N.Y...