How to Judge Future Judges

...The second key event is that the occupant of the Oval Office, who by virtue of his position gets to nominate those who will decide the fate of the constitutional revolution, was neither elected by a majority of the American electorate nor, far more to the point, by ordinary operation of our Electoral College system...

...I agree, of course, that the present Court is too much in thrall to right-wing perspectives...

...Non-partisan" simply does not describe the two centuries of nominating and confirming federal judges...

...One simply cannot calibrate the responsibility of senators at this crucial moment in our nation's history without taking it into account...

...Indeed, a testament to the pervasiveness of this development is that Justice Breyer's statement quoted at the outset stirs no contemporary sense of outrage and is, instead, quite properly treated as a truism about constitutional politics...

...And it is worth noting first, that this framework survived, without serious challenge, for at least a half-century and second, that it is now under serious challenge...

...cabinet officials...

...One need not accuse them of consciously betraying their oaths of office...

...I believe that what is missing on the current Supreme Court is someone with serious political experience...

...In any event, it is beyond doubt that many of these issues, dealing with both substance and procedure, will come before the judiciary, and the Executive Branch will undoubtedly try to stock the bench with judges who share its own exaggerated view of executive power...

...Needless to say, all of his appointees had no doubt that the national government possessed the powers required to pass and administer New Deal legislation...

...and, in one instance, a former president...

...The creation of the party system led to the election fiasco of 1801, when it took the House of Representatives thirty-six ballots to break the tie vote between the DemocraticRepublicans Thomas Jefferson and Aaron Burr...

...Because of its disdain for the other branches of government and for the wisdom that might be generated by service in those branches, the Court gives the impression that only it can be trusted to enforce constitutional values or to think about what the Constitution means...

...THESE ARGUMENTS need to be extended as a result of the events of September 11 and their aftermath...

...That, indeed, existed...

...Stephen Breyer much more recently puts the matter slightly differently, though he arrives at the same basic conclusion...

...reasonable people can certainly disagree about it...

...In 1800, no one doubted that the House of Representatives was the proper body to decide the election dispute...

...The unlucky Robert Bork surely would have been confirmed had he been nominated during that period...

...Many law professors regard Bush v. Gore as a patently illegitimate decision, shoddily argued and monumentally unpersuasive...

...But the process of constitutional interpretation compels the translation of policy into judgment, and the controlling conceptions of the justices are their 'idealized political pictures' of the existing social order...

...Constitution has been rewritten over the last decade and who believe that the Court's intervention in the political process was an especially ugly breach of judicial propriety must not ignore its implications for their constitutionally assigned role as partners in the appointments process...

...Nor is this a recent development...

...The date, of course, is significant, and I have added a paragraph, at the appropriate place, indicating what I would have said had the hearing been held after the events of the following week...

...And the lawyers' chestnut case of Marbury v. Madison concerned a far more obscure "midnight judge" whose commission the new secretary of state (John Marshall's successor, James Madison) refused to deliver...

...If he cannot, how can he expect us to have confidence in a court composed of a majority of Republicans...

...First, to the extent that it is in fact desirable, the best way to achieve it is through the ordinary political process of shifts in power among the political parties in both the executive branch and the Senate...

...But there are also procedural institutional issues, involving who should make the necessary decisions...

...Lincoln cannot conscientiously submit, he thinks, to the decision of a court composed of a majority of Democrats...

...The five justices who decided Bush v. Gore—and who, DISSENT / Fall 2002 n 65 JUDGING JUDGES not at all coincidentally, are the architects of the constitutional revolution whose fate is at stake—put themselves in the remarkable position of making sure that the person charged with appointing their colleagues and successors would be the one most sympathetic to the ongoing revolution...

...Many of the key cases in this constitutional revolution have been decided by narrow 5-4 votes in the Supreme Court that express what law professors Robert Post and Reva Siegel have aptly termed a "juricentric" view of the Constitution that renders irrelevant the views of Congress as to what might be the "necessary and proper" use of powers assigned in Article I of the Constitution...

...At the risk of stating the obvious, this is not how the constitutional system of checks and balances, including the vision of a judiciary removed from politics, was supposed to work...

...The original framework of the Constitution presumed that the Senate would play an important role in the judicial appointment process and serve as a necessary check and balance to the power of the executive...

...The first is that this country is in the midst of a constitutional revolution in areas of federalstate relations and civil rights...

...And, frankly, given the two-hundredyear acceptance of the legitimacy of political parties, Democratic members of the Senate are under no duty to pretend that they are not the majority...

...In recent years, Republican senators stalled the confirmation of many of Bill Clinton's nominees to the judiciary...

...But this is almost never a serious hurdle, and the rest of my discussion assumes that it has been surmounted...

...Whether "balance" is really the issue is underscored by a question raised by Illinois Senator Stephen A. Douglas in one of the electric moments of our political history, his famous debates with Abraham Lincoln...

...Indeed, because of the fact that the Supreme Court hears only relatively few cases in any given year, almost all decisions of the circuit courts are in fact final, not only for the litigants in the particular case but also for the millions of persons who happen to live in a particular circuit...

...George W. Bush is not Ronald Reagan, and the disputed election of 2000 is not the landslide of 1984...

...Subsequent developments in our nation's history, however, make the argument for Senate supervision of the president's judicial nominations even stronger and the Senate's DISSENT / Fall 2002 n 63 JUDGING JUDGES role as a check on presidential efforts to transform constitutional meaning even more crucial...

...After first stating that "[p]olitics in our decisionmaking process does not exist," he distinguished what might be termed "low" from "high" politics: "By politics, I mean...

...But it is absolutely incumbent on those who were properly appalled by the majority's behavior in December 2000 to stand vigilant against allowing it to profit from its own wrong by agreeing to the packing of the federal judiciary with nominees committed to extending the majority's constitutional revolution...

...They must therefore ask if these nominees offer compelling visions of what our constitutional order truly is (or should be...

...It does mean, however, that ideology should not be irrelevant even when considering a nominee to a federal district or circuit court...

...Thus, only a dozen short years after the ratification of the Constitution, the practice of JUDGING JUDGES linking judicial appointment to possession of the correct party membership and ideological perspective was firmly established...

...We would do well to return to that practice...

...will it help certain individuals be elected...

...The development of political parties (and, therefore, of "tickets" that joined candidates for president and vice president together, whatever the particular competence of the latter) led, therefore, to the quick adoption of the Twelfth Amendment...

...This is, after all, the lesson taught by Marbury, which involved someone nominated to serve as a justice of the peace in Washington, D.C...

...Three important examples of this contempt, for Congress especially, are Flores v. City of Boerne, in which the Court blithely invalidated the Religious Freedom Restoration Act, supported by overwhelming majorities of both houses of Congress and by the president of the United States...

...SANFORD LEVINSON iS a professor of law and government at the University of Texas (Austin...

...In at least one way the aftermath of the 2000 election was even more disturbing than its counterpart two hundred years ago...

...Justices Frankfurter and Breyer raise the central issue that senators must face in passing on presidential nominations to the judiciary...

...Even more to the point, situated as they were at the very beginning of the great American experiment, they did not understand that the work of judges (and, for that matter, of presidents and members of Congress) would greatly reshape the meaning of the Constitution over time...

...The Supreme Court, therefore, has made its own contributions, together with the tabloid press and cable news shows, to the pervasive cynicism about the political process that is corroding our political system...

...Senators who share my concerns about the way that the U.S...

...It formally separated the electoral tracks for president and vice president, a clear acceptance of the legitimacy of the party system...

...The most famous such appointee was, of course, John Marshall, whose designation as chief justice was understood by one and all to be a powerful political statement...

...The very possibility that the five justices were completely sincere in their conscious belief that they decided Bush v. Gore on the basis of the law alone simply under66 n DISSENT / Fall 2002 scores the point that judges are human beings like the rest of us, with a propensity to read the Constitution, if at all possible, in a way that provides "happy endings...

...That is, they argue that the Court is currently tipped too far to the right and needs to be collectively brought back toward the center...

...The good and the evil that these men and women do will live long after they leave the bench...

...War, whether formally declared or not, always brings in its wake a host of vital constitutional questions...

...Nor would Lincoln have been any happier if Dred Scott had been a 5-4 decision instead of 7-2...

...Focusing on questions of "balance" and "mixture," I am afraid, simply allows us to neDISSENT I Fall 2002 n 67 JUDGING JUDGES glect talking about the real issues before both the Senate and the American public...

...and many of us believe that its illegitimacy taints Bush's status as our president...

...When considering nominees for the bench, senators must obviously first make sure that they meet certain baselines of professional competence...

...The same thing might be said, incidentally, about the nomination and confirmation of Antonin Scalia during the Reagan administration, shortly after Ronald Reagan's smashing victory in 1984 and the return of a Republican Senate...

...In like fashion, Lyndon Johnson's 1964 landslide victory, coupled with equally impressive legislative victories by the Democratic Party in 1964 and 1966, established all the authority that was necessary to promote an agenda of racial equality in naming new members of the federal judiciary...

...Speaking of the Court's 1857 decision in Dred Scott, which in effect held unconstitutional the platform of the newly formed Republican Party, Douglas noted that "Mr...

...One must ultimately argue about the attractiveness of the substantive visions, not make claims in behalf of a basically spurious notion of "balance...

...What should become of the constitutional revolution put in place by the current five-person majority...

...68 n DISSENT / Fall 2002...

...In December 2000, however, we were presented with the spectacle of five Republican judges using their power not only to shortcut the process of counting the votes in Florida but also, in effect, to render irrelevant the possibility that Congress, exercising its constitutional powers, would resolve any continuing disputes and, as in 1800 and 1824, name the president (who, of course, might well have been George W. Bush...

...That means, at the very least, that every senator, and particularly those on the Judiciary Committee, must decide what the Constitution, best understood, actually requires in our never-ending quest to realize the aims of the Preamble—above all, its emphasis on "establish[ing] Justice...

...These are all "substantive" issues, involving the rights possessed by individuals against government...

...But there is at least one connection worth mentioning...

...I emphasize two such developments...

...No one, for example, could understand the current constitutional revolution without paying attention particularly to certain judges on the Fourth and Fifth Circuits...

...Second, if senators wish to wrestle with the question of the best "mix" of judges on a court, I would emphasize the importance not only of abstract ideology, but also of what Justice Breyer described as "life experience and different kinds of training...

...And, of course, it is not only the Congress and the president who today possess powers that would have astonished earlier generations...

...JUDGING JUDGES The Argument for Balance Some legal scholars, including Chicago's Cass Sunstein and Harvard's Laurence Tribe, have argued that the Senate should aim at maintaining (or restoring) "balance" to the Court and achieving the right "mixture" of viewpoints...

...Constitution in radically different directions, with effects that are likely to be felt for generations to come...

...Senators of both parties must think through these issues of constitutional interpretation for themselves rather than bow humbly before a presidential determination as to who should be on the federal judiciary...

...President Roosevelt's authority to appoint justices like Felix Frankfurter and Senator Hugo Black and his attorneys general Robert Jackson and Frank Murphy came from his repeated re-election...

...This Bush administration is notable for its invocation of unfettered power...

...No one denies that it matters who is elected to the executive or the Congress...

...In this case, the happy ending was supposed to be a Republican president picking Republican justices to be confirmed by a Republican Senate...

...It is the judiciary as well...

...and United States v. Morrison and University of Alabama v. Garrett, in which five-judge majorities exhibited ill-disguised disdain for the relevance of the many hearings, held over several years, that led Congress to pass the Violence Against Women Act and the Americans with Disabilities Act...

...Courts in the past have regularly included former senators...

...No serious person could possibly doubt that the executive branch, when submitting nominees, is attempting to shape the Constitution to its own favored visions...

...But one should not minimize the importance of appointments to what the Constitution deems "inferior" federal courts...

...It is, therefore, thoroughly legitimate, under ordinary circumstances, for senators to concern themselves with the direction in which federal judges are reshaping the American Constitution...

...All senators take an oath to "support" the Constitution, and it is important that everyone—including all elected officials and even ordinary citizens—take seriously his or her own non-delegable, obligation to interpret the meaning of the Constitution...

...To ask the question is to answer it...

...It was, 64 n DISSENT / Fall 2002 after all, James Madison himself who became, during the 1790s, one of the leading founders of the Democratic-Republican Party that vigorously opposed the Federalist Party headed by Alexander Hamilton...

...Ideological judgments play a legitimate role in the consideration of judicial appointments— and this point applies to both parties, regardless of whose ox is being gored...

...First, no one in 1787, even if a supporter of the abstract idea of judicial review, could have contemplated the role that courts would come to play in our political life, including decisions, sometimes in quite minute detail, regarding the most important political issues before the country...

...After all, the last thing that the outgoing Federalist president, John Adams, did before leaving office was to pack the judiciary with Federalists, confirmed by a lameduck and popularly repudiated Federalist Senate...

...Judges with different ideologies will shape the Most of this article was originally presented as testimony to a subcommittee of the Senate Committee on the Judiciary, on September 4, 2001...

...One may celebrate this set of developments or regret them, but they are part of the constitutional system that we live under today...

...Rather, Lincoln objected to the fact that the Supreme Court was controlled by persons committed to what he properly viewed as an odious view of the Constitution...

...All of my arguments with regard to justified wariness about rubberstamping nominations to the Supreme Court apply in full to the "inferior courts...

...THE CURRENT Court is composed of a majority of justices, themselves without significant political experience, who appear to view politicians as the agents of private interests and pressure groups, unworthy of trust...

...The tie was the direct result of the original Constitution's failure to recognize the existence of political parties and to assume instead that members of the Electoral College would vote in a disinterested manner for the two people they thought best equipped to be president...

...Instead, he was granted his office by a willful decision of the U.S...

...He quickly went on to say that "[p]ersonal ideology or philosophy is a different matter...

...And Douglas recognized that Lincoln was committed to securing a new majority, as in fact he did upon his election to the presidency two years later, when he was able to nominate justices who would be confirmed by what had become a Republican Senate...

...Already being actively debated are, for example, the use of ethnic profiling, the propriety of indefinite detention and secret trials, and the legitimacy, under some circumstances, of the use of torture...

...Judges have had different life experiences and different kinds of training, and they come from different backgrounds...

...Or should Dwight Eisenhower or Lyndon Johnson have appointed a Southern white segregationist to the Court, given that the Court no longer reflected that perspective in the years after Brown v. Board of Education in 1954...

...I NDEED, by the time the House was choosing the new president in March 1801, it was clear that the Framers' original vision of a judiciary free from partisan influence had collapsed for precisely the same reasons that had invalidated the original vision of the Electoral College...

...it would be equal folly to pretend that the identity of those who sit on the federal bench is without consequence to the quality of American life and liberty...

...Should the Senate allow the decision in Bush v. Gore to give its proponents a political advantage in carrying that revolution forward...

...Most important for our present purposes is Justice Breyer's forthright comment that "Ifludges appointed by different presidents of different political parties may have different views about the interpretation of the law and its relation to the world...

...TWO FINAL comments about "balance...

...We might remember that not all of them were upheld...

...In one sense, this emphasis on political experience is independent of ideology inasmuch as there are obviously both Democrats and Republicans who would bring rich political backgrounds to the judiciary...

...If I disagreed with the opposition of Republican senators to President Clinton's nominees, it was because I do not share Republican ideological commitments, not because I think the senators had a duty to exhibit automatic deference to the president...

...This made sense in 1787, when the Constitution was initially drafted...

...Hovering over any discussion of judicial nominations in our day are two central events...

...To this extent, at least, we should learn from Thomas Jefferson and realize that serious questions may be raised as easily by obscure nominees as by the most visible...

...I have emphasized the issues posed by nominations to the Supreme Court, in part because they are most visible and undoubtedly stir the most intense public controversy...

...Circuit judges do not enjoy the same degree of freedom as do Supreme Court justices with regard to overruling past decisions, but it would be foolish to ignore the extent to which imaginative and innovative circuit judges exercise a real influence on legal developments, for good and for ill...

...But I have no desire to endorse the call for "balance...

...Do any of us, for example, believe that Franklin Delano Roosevelt had an obligation to begin appointing opponents of the New Deal after 1941 when he had "captured" the Court by making five or six new appointments that assured the triumph of New Deal legislation...

...This does not mean that the same level of ideological scrutiny should be applied to all nominees at each level of the federal judiciary...

...Frankfurter himself, for example, was one of several of Franklin D. Roosevelt's appointees who together rejected the constitutional learning of seventy years and established a very different framework of congressional regulatory power and federal-state relations than that which existed prior to their service on the Court...

...Democrats would have justifiably been appalled, but they could not in good faith have charged Reagan and his Republican allies with any misuse of their power...

...governors...

...George W. Bush does indeed occupy the White House, and no one seriously suggests that he ought not be accepted as our president...

...But their choice to intervene as they did placed them in a patent conflict of interest...

...The Constitution that emerged from the New Deal and the Second World War, for example, is a substantially different document from the one that existed in the 1840s, when few people imagined a significant congressional role in helping to regulate a national economy, and when the United States was still able to maintain a more or less detached posture vis-à-vis world politics...

...No one could seriously doubt that the five justices in the majority relished the prospect that the White House would be inhabited by a Republican who could, among other things, nominate their successors...

...This revolution will be quelled, or it will go into overdrive—with significant consequences for our system of government— depending on the next set of appointments to the federal judiciary...

...At this point, then, the crucial question that senators must decide is what they believe the Constitution of the United States, at least as interpreted by the Supreme Court, should look like years from now...

...Adams and his Federalist associates hoped that these new judges would use all the powers at their disposal to put stumbling blocks in the way of the detested and feared Jeffersonians...

...Significant portions of it have been questioned, if not overturned, by the Court's new majority, appointed by Ronald Reagan and George H. W. Bush...

...Douglas's use of the word "majority" is key, for he is speaking not of "balance" and the propriety of having a Republican voice on the Court...

...Second, the authors of the 1787 Constitution assumed that there would be no organized political parties—the very idea appalled them...

...The developing custom of appointing only persons with prior experience on the bench is, I believe, unwise, depriving the Court of important perspectives that come from immersion in the political process...

...His victories at the polls suggested that Americans viewed as necessary and proper a variety of changes in the basic structure of our political system, ranging from a significantly strengthened Congress to an elaborate system of administrative agencies charged with implementing congressional enactments...

...But George W. Bush lacks precisely this sort of political authority to throw the Court further to the right and to reshape the meaning of the Constitution for generations to come...

...In December 2000, it appeared that the Senate would continue to be Republican...

...As suggested earlier, one theme that runs through many of the Supreme Court's recent decisions, including Bush v. Gore, is a near contempt for politics and politicians...

...But these are not ordinary times...

...The voice of an honorable practitioner of the arts of politics would be a valuable addition both in the conference room of the Supreme Court and, indeed, in the written opinions themselves...

...The first was written by Felix Frankfurter some seventy years ago: "[M]embers of the court are frequently admonished by their associates not to read their economic and social views into the neutral language of the constitution...

...They would therefore surely be astounded to learn that the common practice is for presidents deliberately to staff the judiciary with people from their own political party in order to promote a distinct ideological agenda...

...One must reach back at least to Lincoln's time to find similar assertions of executive authority...

...I cannot offer any other than political objections to this, at least when that opposition was candidly expressed as a good-faith belief that a nominee possessed an unacceptable view of the Constitution...

...As a practical matter, though, there is little that one can do about Bush v. Gore...

...Bush v. Gore remains the equivalent of a stinking pig in the parlor...

...This is not an easy task...