Commentary

Bench Politics: Senate Stalls on Judges Who Would Uphold the Constitution

This article originally appeared in Legal Times on January 21, 2002.

Should the Senate Judiciary Committee grill nominees for the federal courts about their ideology and then reject those who fail an ideological litmus test? The implications are breathtaking. Yet Senate Democrats appear prepared to do that-or to reject nominees outright, without a hearing, based simply on their perceived “ideology.”

The roots of this effort are deep, going back a century, but the proximate cause is Bush v. Gore. Just after the decision came down, the legal academy, overwhelmingly Democratic if not leftist, exploded in a torrent of anger. Some 550 professors from 120 law schools ran a full-page ad in The New York Times a year ago claiming that the Court’s majority had acted as “political proponents for candidate Bush, not as judges.” In op-eds, articles, books, and TV appearances, the venom poured forth. Yale Law School’s Bruce Ackerman went so far as to urge Senate Democrats to reject every judicial nominee that the illegitimate President George W. Bush offered up.

They haven’t done that, but they’re certainly in a confirmation stall. Since Bush took office, there have been 128 vacancies on the 862-member Article III courts. To date, Bush has nominated 65 candidates to fill those vacancies. Only 28 have been confirmed, leaving 100 empty seats, 39 of which are judicial emergency vacancies according to the Administrative Office of the U.S. Courts. ON the U.S. Court of Appeals for the 6th Circuit, half the seats today are empty.

In fact, the stall is most evident at the circuit level. Only six of Bush’s 29 circuit court nominees have been confirmed, and two of those were Clinton holdovers, re-nominated as a gesture to the Democrats. More telling still, 11 of those nominees have been hanging since May, never having had a hearing, much less a vote.

And we’re not talking here about political hacks. Miguel Estrada, Michael McConnell, John Roberts Jr., Jeffrey Sutton-those are just some of the stellar appellate nominees whose names have been before the Senate since May. Their problem, it seems, is that they cannot get through the Democrats’ ideological filter. Those are some of the same Democrats, recall, who condemned Reagan Republicans for their alleged use of a pro-life litmus test, despite having no evidence of the practice.

What is plain now is that it’s not the use of a litmus test that troubles Democrats, but the content of such a test. And they’re not at all reluctant to give evidence of their own test.

‘Core Values’ Revealed

Last June, Sen. Charles Schumer, chairman of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, wrote an op-ed for The New York Times, “Judging by Ideology,” which appeared on the same day he held hearings on whether ideology should play a role in the selection and confirmation of judges. He concluded it should, to no one’ surprise.

In fact, Schumer gave us a three-part test for determining when to invoke ideology: “the extent which the president himself makes his initial selections on the basis of a particular ideology, the composition of the courts at the time of the nomination and the political climate of the day.” One looks in vain for bright lines in that test.

Schumer’s aim, however, is clear. It is, expressly, to keep conservatives like Justices Antonin Scalia and Clarence Thomas off our courts. “The Supreme Court’s recent 5-4 decisions that constrain Congressional power,” Schumer wrote, “are probably the best evidence that the court is dominated by conservatives.” Thus, “tilting the court further to the right would push our court sharply away from the core values held by most of our country’s citizens.”

Never mind, apparently, what the law might say about the scope of congressional power-or anything else, for that matter. What counts, rather, is our citizens’ ‘core values.’

That glimpse of the Democratic agenda was embellished two months later, again just prior to another Schumer hearing on ideology, when party elder Joseph Califano Jr. wrote an op-ed for The Washington Post, “Yes, Litmus-Test Judges.” Complaining that gridlock and big money have long kept Congress from legislating on a wide range of urgent matters, Califano noted that concerned citizens might have been petitioning the courts with matters they once took to the political branches, making the courts “increasingly powerful architects of public policy.”

Indeed, “who sits in federal district and appellate courts is more important than the struggle over the budget” or virtually anything else today in Washington. For we’ve all learned, Califano continued, “that what can’t be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits.” The Senate, therefore, needs to decide, on explicitly ideological grounds, who will be “setting national policy” from the bench.

There you have it. Everything is politics. Nothing is principle. Judges don’t simply apply law. Sympathetic judges make law, like so many legislators, setting national policy in the process. Meanwhile, our nominal legislators in the Senate are reduced to vetting our true rulers.

Interestingly, the Constitution, which spells out the actual separation of powers, is mentioned not once in Califano’s piece. Doubtless, it is an embarrassment, utterly inconsistent with his picture of a thoroughly politicized judiciary.

Losing Sight of Limits

Yet for all that, Califano’s picture is too close to the truth to be ignored. He’s put his finger on just why the confirmation battles today loom so large. What he and his Democratic colleagues have failed to do, however, is explain, much less justify, this flight from constitutional principle. To get at that, we have to go further back.

The main origins of the problem lie in the Progressive Era, when the social engineers of the time often sought to do through government what the Constitution plainly left to the private sector. Things came to a head during the New Deal when a frustrated Franklin Roosevelt attempted to pack the Supreme Court. The scheme failed, but FDR won the day when a cowed Court began rethinking the Constitution, effectively eviscerating constitutional limits on federal power.

Although the Court that emerged was called “restrained”-by virtue of its deference to the political branches-it was, in truth, activist-finding congressional and executive powers nowhere granted, ignoring rights plainly in the Constitution. And the Court’s rethinking led ineluctably to a general shift of power to the judicial branch. The shift had two aspects. First, with the political branches now free to rule almost every aspect of our lives, it was only a matter of time before their ever-expanding product ended up in the courts, with the courts asked to sort out the mess that Congress was making. But those who promoted such schemes didn’t always win in the political branches. Thus, second, when they lost, they turned increasingly to the courts, trying to win from sympathetic judges what they had failed to win politically. And the Earl Warren and Warren Burger Courts, already deferring to the political pursuit of “social justice,” were only too willing to step into the fray, thinking themselves a legislature of nine.

The Rehnquist Court, by contrast, has taken modest steps over the past decade toward resurrecting constitutional principles of limited government. However modest, those steps have alarmed liberal Democrats. They can’t imagine anyone thinking that Congress’ powers are limited; that if an end is worthy, Congress still might not have the power to pursue it; that James Madison might have meant it when he said that the powers of the new government would be “few and defined.”

Thus, when Democrats seek today to subject judicial nominees to an ideological litmus test, they’re continuing the work of an earlier generation of their party. The test they would impose has little to do with law or with the ideology of the Constitution-a document understood for 150 years as having instituted limited government. Rather, it has to do with whether the nominee subscribes to the version of the Constitution that the 1937-48 Court invented to allow the modern welfare state to bloom. That version, which encourages judges both to ignore limits on power and to find rights nowhere to be found, requires a judge to be sensitive to “evolving social values”-sometimes even before they’ve evolved.

Having earlier politicized the Constitution, Democrats are now bent on politicizing the judiciary. If they succeed, it will mark the triumph of ideology and the death of law.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.