The Real Culprits in the Judgeship Jam

As the media have it, politically motivated Senate Republicans are undermining the effectiveness of the federal court system by refusing to confirm President Bill Clinton’s judicial nominations. Federal judgeships go unfilled, sitting judges are overworked, cases are logjammed and justice is being denied to litigants. The problem is real, all right, but it is not new. Nor was it created by Republicans. What we are witnessing is not gratuitous GOP obstructionism, but a brave new mode of judicial selection and confirmation put into effect by Democrats during the Bush administration.

Historically, it has been the president’s prerogative to select and nominate federal judges as he saw fit, with the Senate keeping things in check through its “advise and consent” power of confirmation. It was a part of the electoral spoils system. By and large, the tacit understanding was that the president, having won the election, had a popular mandate to appoint as federal judges people whose views on issues were compatible with his, and the Senate would not interfere unless a nominee was unfit for the job.

But all that came to an end in the 1980s, when Democrats proclaimed it a civic virtue to deny confirmation even to qualified presidential nominees, on the ground that the appointees’ views were inconsistent with their liberal ideology. During the Carter administration, committees were set up to screen prospective judicial nominees for their diversity and commitment to social justice, both code phrases for the liberal agenda.

This strategy was the natural outgrowth of the crusade begun in the 1930s by President Franklin D. Roosevelt, when he announced his court-packing scheme. Frustrated by rulings of a conservative Supreme Court that struck down some of the New Deal as unconstitutional, Roosevelt threatened to pack the court with additional judges selected on the basis of their adherence to New Deal philosophy. The threat was never carried out because it proved unnecessary. In the infamous “switch in time that saved nine,” the Supreme Court capitulated and began approving New Deal legislation. Even so, the notion of an ideologically compliant judiciary was legitimized with a bang. Enter the Warren court.

It was not just the court’s activism, but Chief Justice Earl Warren’s style of judging that contributed to the current problem. When Warren interrupted a lawyer’s legal argument and famously asked, “Yes, but is it fair?” he changed the vision of judicial decision-making and, eventually, the making of American judges. The adulation his style of judging received from liberal elites institutionalized it, even though what was fair to Warren might not seem fair to other judges.

Fairness was not the problem. Who would object to judges being fair? But it is one thing to say that evolving legal doctrine should be informed by the moral norms of society, and quite another for a judge to rule for one litigant or another on the basis of subjectively held and ideologically motivated notions of fairness. However abstractly attractive such a model of Solomonic justice may at first appear, it eventually becomes the dreaded “rule of men,” not of law. Moreover, this was a prescription for judges to relieve themselves of the constraints of legal doctrine and to take sides in the resolution of social issues on grounds that were at times outside the special competence of the judiciary. Not surprisingly, judicial nominations became a political pawn.

Yet another dubious legal theory was unleashed on the legal world during the time. State legislatures, it went, were not keeping statutory law abreast of changing social conditions, so it was up to judges to step in and do legislators’ job for them. That this was antidemocratic at its core and violated the Constitution’s separation-of-powers doctrine went without much debate. People were bringing their disputes to court, went the argument, and judges had no choice but to decide the cases fairly, even if that meant delving into social-policy matters that legislators chose not to address by law. One consequence was that new judges not only responded to changed social conditions by modifying the law in common-law tradition, but they also brought about social change by effectively formulating policies while immune to electoral accountability.

In California, this vision of judicial mission reached its ideological zenith in 1973, when state Supreme Court Justice Mathew O. Tobriner published an article in the State Bar Journal calling for a “social revolution” to be worked through the courts by “young lawyers.” Such talk was ideological mummery. It was not a call for a children’s crusade, but an exhortation to legal activists of all ages to supply the courts with cases carrying a potential to make social changes congenial to the liberal ideology then dominating the bench.

It didn’t take the proverbial rocket scientist to realize that, with judges so deputized as agents of social and ideological change, the political party with appointing power could advance much of its agenda without having to deal with the messy legislative process. During the Bush administration, a group of University of Southern California law professors went so far as to argue that the Senate, then in Democratic hands, should be proactive in choosing ideologically compatible judicial nominees and should even reject Bush’s qualified judicial nominees. Some 100 federal judgeships were eventually blocked by Senate Democrats.

It should come as no surprise that with this model of judging and judge-making now institutionalized, the rules of the game have changed. Under the rules fashioned by liberals and implemented by Senate Democrats, Republicans have rightfully come to believe that they, too, are entitled to claim their ideological prerogatives through judicial appointments. Hence, the prevailing Senate stalemate that is an ideological mirror image of the situation that prevailed during the Bush administration, and that even now keeps vacant federal judgeships from being filled expeditiously.

It would be vastly preferable if both sides were to call an ideological truce and make an earnest effort to restore a less politicized process of judicial selection and confirmation. But in the real world, it would be unrealistic to expect Senate Republicans to surrender their concepts of public good inherent in their judicial selections and let Democrats have their way. To the extent Democrats complain, they should keep in mind the old saw that you must be careful what you wish for because you might get it. *