How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees

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The 2000 presidential election was widelyunderstood to be a battle for the courts. WhenGeorge W. Bush finally won, following theSupreme Court's split decision in Bush v. Gore,many Democratic activists simply dug in theirheels, vowing to frustrate Bush's efforts to fillvacancies on the federal courts. After Democratstook control of the Senate in May of 2001, theybegan calling explicitly for ideological litmus testsfor judicial nominees. And they started a confirmationstall, especially for circuit court nominees, thatcontinues to this day. Thus, 8 of Bush's first 11 circuitcourt nominees went for over a year withouteven a hearing before the Senate JudiciaryCommittee, and most have still not come beforethe committee.

As the backlog of nominees grows, Democratsare quite explicit about the politics of the matter:their aim is to keep "highly credentialed, conservativeideologues" from the bench. The rationalesthey offer contend that judges today are, and perhapsshould be, "setting national policy." One such"policy" they abhor is "the Supreme Court's recent5--4 decisions that constrain congressional power."Thus the importance, they say, of placing "sympatheticjudges" on the bench, judges who share "thecore values held by most of our country's citizens."In a word, everything is politics, nothing is law.

The battle between politics and law takes placeat many points in the American system of government,but in recent years it has become especiallyintense over judicial nominations. That is becausejudges today set national policy far more than theyused to--and far more than the Constitution contemplates.Because the original constitutionaldesign has been corrupted, especially as it relates tothe constraints the Constitution places on politics,we have come to ideological litmus tests for judges.The New Deal Court, following PresidentRoosevelt's notorious Court-packing threat, politicizedthe Constitution, laying the foundation forseveral forms of judicial activism. After that it wasonly a matter of time until the judiciary itself had tobe politicized. We are reaping the fruit of that constitutionalcorruption.

That will not change until we come to gripswith the first principles of the matter--with thetrue foundations of our constitutional system. Yetneither party today seems willing to do that.Democrats have an activist agenda that a politicizedConstitution well serves. Republicans havetheir own agenda and their own reasons for avoidingthe basic issues. Thus, it may fall to the nomineesthemselves to take a stand for law over politics,the better to restore the Constitution and therule of law it was meant to secure.

Roger Pilon

Roger Pilon is vice president for legal affairs at the Cato Institute. He holds Cato's B. Kenneth Simon Chair in Constitutional Studies and is the director of Cato's Center for Constitutional Studies.