Why This Fuss Over Judicial Nominations?

Americans don’t like squabbling. They don’t like to get mixed up in the antics of selfish parties fighting over narrow interests…after all who would? Especially when both sides paint each other as protecting “extreme” positions and responding to pressures from “narrow” interest groups. There are times however, when what appears to be petty partisan squabbling is really a deep philosophical disagreement about the nature and future of the American regime.

While many seek to portray this as a trivial quarrel between two parties acting as mere proxies for extreme interest groups on both sides of the political spectrum there is much more here than meets the eye. The Republicans are not merely responding to pressures from the “religious right” and the Democrats are not just protecting the interests of NARAL.

There is a great principle at stake and the American people should not tune out this debate as simply another round of “Washington politics.” Rather they should brave the shallow rhetoric from both sides, realize what is at stake, and support the side they agree with.

In broad terms what is at stake is nothing less than the future America’s written constitution. I don’t mean this in an alarmist manner, the Constitution will not disappear overnight, but in the long run these are the stakes and the American people need to affirm what they expect from their judges in terms of jurisprudence, if they want to preserve our Constitutional tradition.

Put more concretely the principle at stake is whether or federal judges are, or should be, accountable to anyone but themselves and their own conscience. That is to say, should judges feel bound by the Constitutional text or some outside sense of wisdom or justice?

Republicans, in general, have held that judges ought to hold a judicial philosophy of self-restraint. They believe that judges should defer their own political views to the letter of the law, whether that law is a statute passed by Congress or it is the fundamental law of the Constitution as ratified by the people. They believe the best way to pursue the common good is to let the people speak through their elected representatives, and judges should be very hesitant to overrule them. The only time a judge should strike down a state law or a congressional law is when it clearly violates a plain reading of the Constitutional language, not when it violates their political sensibilities. A judge should never substitute their will for the will of the people as expressed in the law.

Democrats, in general, have held that judges ought to hold a judicial philosophy in which they should not restrain their own conscience or political beliefs. Judges are free to “find new meanings” in the law and expand it if need be to conform to what they feel is just or wise. Simply deferring to established precedent and established law may not serve the judge’s view of what policy is best for the common good. As such they do not feel constrained by a plain meaning of the Constitutional text and in the end they are accountable to their own conscience and perhaps in some sense to history. It is acceptable for the judge to substitute their will for the people’s when the judge believes the people are wrong. While Democrats are not comfortable admitting that judges amend the constitution, they are comfortable admitting that judges should continue to find new meanings in the Constitutional text.

Neither of these legal views is new, and in that sense it seems odd to refer to either as “extreme.” The Republicans are drawing on a legal tradition that dates back to the founding and the Democrats are drawing on a legal tradition that rose to prominence during the progressive era over 100 years ago. In the past both parties have honored the electoral process and generally allowed the President to choose justices that reflect his judicial philosophy.

Currently the Democrats have decided that the President should no longer have this prerogative and are seeking to prevent any appointment of judges who do not share their judicial philosophy. They are seeking to paint as “extreme” any judge who simply holds an opposing judicial philosophy. Even though they are no longer the majority party they believe their judicial philosophy should reign exclusively. Republicans having won the Senate and the Presidency reasonably expect that it is their turn to appoint judges that share their judicial philosophy and they are refusing to yield to the establishment of a precedent that would allow these judges to be systematically excluded from the bench.

So how does this relate to the future of the American Constitution? As a simple point of logic one of these approaches is more compatible with written constitutionalism and one is not. That is to say, if judges uniformly defer to the Constitution’s text, then that text will maintain its authority, conversely if judges do not defer to the text then the authority of that text will diminish over time. As the authority of the text is diminished we begin to move from a written Constitution to an unwritten one. As one judicial philosophy becomes more dominant than the other, so goes the future prospects for maintaining a written Constitution.

Ideally both parties would both share a judicial philosophy that is compatible with our written constitution and simply work to enact their different policy visions through the representative branches of government. As we know the world is not ideal and it is not unusual to use the authority of the Constitution to pursue partisan policy.

Of course the embrace of a judicial philosophy that shows impatience with the Constitution and its forms and formalities is not new, nor is it to be unexpected. As Alexis de Tocqueville observed the pursuit of immediate policy goals at the expense of important forms is to be expected and guarded against:

“Equality awakens in men several propensities extremely dangerous to freedom, to which the attention of the legislator ought constantly be directed. I shall only remind the reader of the most important among them.
Men living in democratic ages do not readily comprehend the utility of forms: they feel an instinctive contempt for them, I have elsewhere shown for what reasons. Forms excite their contempt and often their hatred; as they commonly aspire to none but easy and present gratifications, they rush onwards to the object of their desires, and the slightest delay exasperates them. This same temper, carried with them into political life, renders them hostile to forms, which perpetually retard or arrest them in some of their projects.
Yet this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak, the ruler and the people, to retard the one and give the other time to look about him. Forms become more necessary in proportion as the government becomes more active and more powerful, while private persons are becoming more indolent and more feeble. Thus democratic nations naturally stand more in need of forms than other nations, and they naturally respect them less. This deserves most serious attention.”

In the end this showdown between the Republican and Democrats has much larger implications than the current media coverage would suggest, and it would behoove the American people to pay attention and throw their support behind the party that is more likely to appoint judges who respect the authority of the Constitution and its forms.