Ed Whelan at NRO sharply criticizes this Washington Post editorial on Supreme Court nominations: The danger of Trump, Sanders and Clinton’s Supreme Court lists and litmus tests. (The "danger" is that they are further "politicizing the judiciary"). He highlights especially this odd passage:
The judiciary is different from the other two, more political, branches of government, and politicians, in their search for short-term victories, should not be so eager to erode that difference. Judges are not immune to ambition or political ideology, but Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set. A world in which judges must at the very least address these expectations is far better than a world in which they are assumed to be wholly political actors who need offer no justification beyond, “I promised to rule this way.”
My thoughts: this is the worst sort of oversimplification and denial.
(1) I wonder if the editorial writers have seen this post by Mark Tushnet, or even this post by Erwin Chemerinsky. Do they know that leading liberal law professors think of the Court (on big constitutional issues) in purely political terms where their side, they hope, is about to "win"?
(2) I'm sure that every person on Trump's list, and every person Clinton or Sanders would nominate, and every Supreme Court Justice in modern memory, and virtually every member of the federal judiciary, is "guided by … careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, [and] a healthy amount of modesty…" But these admirable values do not decide hard, politically salient cases. The disputes that matter to society as a whole turn on (a) judicial philosophy regarding the role of courts and the nature of interpretation, and (b) depending on the conclusion in (a), social morality. And so all the hard questions on nomination and confirmation turn on the latter points, not on the take-for-granted values the Post identifies. Anyone who thinks otherwise does not understand how the Court works.
(3) Similarly, no judge in the country is or would ever be a "wholly political actor[ ] who need[s to] offer no justification beyond, 'I promised to rule this way.'" This is as simplistic a false-dichotomy as one can imagine. Of course judges/Justices will offer justifications, and those justifications will (in hard cases) sound in the considerations noted in points (a) and (b) above — judicial philosophy and social morality. What Trump and Clinton and Sanders are getting at in their lists and tests is: what are the right judicial philosophies and social moralities for Justices? Or put another way, what kind of a judge — philosophically — is this potenial nominee? The idea that judges are either not political, or else would vote a particular way because they promised to do so, trivializes the choice. It isn't that the nominee promises a particular outcome; it's that the nominee embodies a particular approach to judging that one finds either appropriate or inappropriate. And the evaluation of that approach is never on the wholesome-yet-empty criteria the Post proposes (because all plausible nominees meet those), but on how the nominee views the role of the judge and the shape of the best society. So in selecting nominees, why would we not want to think about their views on these subjects? And in selecting among presidential candidates, why would we not want to know what their views are?
(4) Ed Whelan is rightly aghast at the Post's proposition that judges' rulings "must bear a rational relationship to the laws they interpret and the precedents they have set." Again, surely all plausible nominees meet this extraordinarily low bar. (Do the editorial writers understand that a "rational relationship" is a term of art for the lowest possible standard in constitutional adjudication?) Surely a judge's rulings should have much more than just a "rational relationship" to the law they are supposedly applying. But assuming the Post's equivocal language is meant to acknowledge the substantial discretion judges have in reaching their conclusions in hard cases: what does the Post think judges are going to use to decide among the various options, all having such a "rational relationship"? The right answer is, as above, the judges' views on the judicial role and/or on social morality.
(5) The short answer to the charge of politicizing the judiciary is: if you make the judiciary a decider of political morality, it will be politicized. Justice Scalia made this point in 1998 in A Matter of Interpretation. The Post editorial writers should ask themselves: (a) how many times have they applauded or criticized a judicial result based on whether the social morality it reflected accorded with their own, and (2) how many times have they applauded a judicial result because it reflected a proper understanding of the judicial role in a constitutional democracy even though the outcome conflicted with their own social morality? If, as I suppose, the answers are "many times" and "never," we can see who really is to blame for the politicization of the judiciary. Trump, Clinton and Sanders are just responding to a reality created by others. As Whelan puts it, "The primary cause of 'politicizing the judiciary' is the widespread belief that judges have free rein to read the Constitution and federal statutes to impose whatever result they want."
(6) If one really wants a de-politicized judiciary, the key is to reduce the judiciary's political role. There are at least two paths for doing so. One is a strong version of judiciary restraint. If judges did not rule against the elected branches except where judges of all jurisprudential approaches would agree, the role of courts in governing modern society would be greatly reduced and it would not matter so much who was nominated. (The downside is that we would lose an independent check on the elected branches). The second path is a strong commitment to originalism/textualism, so that judges are not pursuing their own versions of social morality but are trying to discern the choices made by earlier lawmakers. If we have true courts of law, not courts of policy, again the nominees will not matter so much. (This path is a lot harder than pure judicial restraint, but it maintains a check on the elected branches).
It's not clear to me if either of these approaches is possible. But if the Post is serious about a de-politicized judiciary, it could start advocating for one or the other of these approaches. To pursue the ridiculous notion that we can take politics out of the judiciary just by picking judges that are "guided by … careful thinking, reverence for the facts of specific case," etc., is either extraordinarily naive or shockingly dishonest. For this reason I much prefer Tushnet and Chemerinsky (and Trump, Clinton and Sanders): they understand what is at stake and are willing to say it.
(To be clear, I do not think potential nominees should promise particular results in specific cases. Obviously Trump's list doesn't raise this concern; arguably some of Clinton's and Sander's statements might. But think Clinton and Sanders are best understood as saying they would nominate someone who is has the type of judicial philosophy that would likely lead to a particular result, not that they would extract such a promise expressly.)
SOMEWHAT RELATED: At Liberty Law Blog, John McGinnis: Trump, Clinton, and the Supreme Court.
Posted at 6:45 AM