Late yesterday The Hill posted a short op-ed I wrote on President Trump’s nomination of Judge Neil Gorsuch to fill the seat of the late Justice Antonin Scalia. As often happens, a couple of editorial changes, especially in the title, muted somewhat the central point of the piece. But even were that not so, that point is worth further attention.
It concerns judicial independence. As I wrote, facing a nominee with impeccable qualifications, Democrats are now crafting an indirect assault against Judge Gorsuch. Thus, they’re pointing to the president’s outrageous attacks on the judiciary, among other things he’s said, and contending that he’s imposed a “litmus test” on the nominee. So they’re demanding that Judge Gorsuch “very explicitly and directly” disavow the president’s remarks, which he has already done respectfully, but in addition that he “very specifically” make his own policy views known in the upcoming confirmation hearings (which we’ve just learned will begin on March 20).
Not only does that second demand fundamentally misconceive the role of a judge, but judicial litmus tests mark the end of judicial independence. If a prospective or actual nominee can be compelled by a president or by the Senate Judiciary Committee to state his policy views with a measure of specificity as a condition of being either nominated or confirmed, then to that extent future cases will be decided not on the law but by politics in the nomination and confirmation processes. And that will be the end of the rule of law, for when all is politics, nothing is law.
Admittedly, this is a dilemma of our system, whereby we select judges under something like a veil of ignorance. But it is inescapable, and we have to live with it because the alternative is worse. Usually, of course, we look for indirect indications of a prospective nominee’s views, but in the case of appellate court judges, those are often not instructive because good judges are bound by law and precedent, more so in the latter case than if they were on the Supreme Court.
And so we go through this “confirmation theater,” which is relatively recent and usually reveals very little about how a nominee will rule in future. That we do, however, is a mark of something much deeper and more disturbing—how divided we are about our fundamental constitutional principles, about which I have written elsewhere in detail and in this context. Were there more agreement we could focus simply on a nominee’s qualifications. With Judge Gorsuch’s confirmation, however, perhaps we will start slowly to move toward resolving those deeper disagreements, for which he is eminently qualified.