Justice vs. politics
It would be easy to find yourself disheartened by the undignified and partisan process we cooked up in 2005 to fill two Supreme Court vacancies. Regardless of your personal politics, the process appears sufficiently hollow and mean-spirited to depress virtually everyone. Liberals can find themselves discouraged by the blatant partisanship and cronyism shown by President Bush in his selections. Conservatives can take no pleasure in the name-calling and the withdrawal of qualified candidates at the prospect of being “Borked” into smithereens. Add to this punchbowl the new phenomenon of blistering television attack ads and the falsity and pompousness of the hearings themselves.
But before you decide to drown yourself in your eggnog, consider this: There is a larger lesson in the past months’ wrangling over these two vacant chairs, and it’s ultimately an optimistic one. History may well judge that the confirmation process of 2005 proved to be the moment when the judiciary showed itself to be remarkably resistant to the slings and arrows of brutal partisan campaigning, and the citizenry proved themselves capable of distinguishing judges from pols.
Consider, first, the John Roberts nomination: Here was a supremely qualified, brilliant and thoughtful man whose personal and professional qualifications mapped almost perfectly onto what we consider the ideal justice. Although it’s far too soon to make any predictions about his performance as chief justice, Roberts’ claim to institutional humility for the courts, his clear and penetrating grasp of case law and his acknowledged respect for precedent made him a remarkably appealing nominee. Efforts to use those qualities for political ends -- through advertising, lobbying or the hearings themselves -- largely backfired.
Indeed, the moral of the Roberts hearings was clear to anyone who watched: Senators practiced in grandstanding and making deals came out of the process looking like rumpled and even silly ideologues. And Roberts -- who beat them hollow on style and substance -- came out looking like a pro, a seeker of answers and wisdom, not advantage. It’s an important lesson. Whatever it is that judges do isn’t the same as the business of politics. And politicians should get out of their way and let them do it.
Even the abject failure of the Harriet Miers nomination should be heartening to Americans for much the same reason. Although the president’s choice signaled that he had no real respect for -- or understanding of -- the work of the courts, the resounding rejection of that notion, from both sides of the political spectrum, proved that everyone else gets it.
Being a Supreme Court justice is highly specialized and arduous. Americans of every political stripe refused to countenance the kind of politics-as-usual cronyism that led to the installation of a Michael Brown at FEMA. It might have been instinct more than anything else, but we agreed to draw the line at the judicial bench, recognizing that the courts are too special to be padded with people -- even nice people, even otherwise capable people -- who are not, in the end, superheroes of the law.
So the Miers nomination imploded for the very same reason the Roberts nomination succeeded: because Americans have a very good idea of what a high court justice should “look” like, and they won’t be bullied, lobbied or bought into changing it.
That brings us to the Samuel Alito nomination, which probably won’t fare as smoothly as Roberts’ or as dismally as Miers’. Alito doesn’t match the public perception of the perfect justice, as did Roberts, nor is he shockingly unfit, as was Miers. This ambiguity leaves room for the political machine to gear up, with special interests salivating and party war chests opening. Be prepared for attack ads jockeying to color our strong intuitions about what makes a superb Supreme Court justice. Alito’s resume and some of his professional writings show he has a partisan past, which will feed the fire.
But no matter how much money is spent on attacking (or supporting) Alito in Swift boat-style ads on TV, the sound-bite wars just aren’t a persuasive forum for debating the merits of a Supreme Court justice. We have every reason to hope that Americans get that, and that they will apply the same instincts about the nuances of a judge’s job to the process in 2006 that they did in 2005.
So, for example, they’ll realize that federal judges don’t make promises in exchange for public support. By and large, they don’t casually swap votes or game the system to help one side or another. Their rulings aren’t about personal or political ideologies. Instead, most judges -- particularly at the Supreme Court level, where there are two highly meritorious sides in every appeal -- meticulously attend to the letter of the law. They are heavily influenced by powerful precedent and their colleagues’ reasoning. And in the end, judges become judges because they love to read and think, not because they dream of refashioning national policy.
In short, as hard as some may try to run these confirmations like any other election, a long-standing public tradition of respect for the courts and the rule of law will prevent us from allowing anyone to “Swift boat” our justices.
Make no mistake about it: This country is not well served by efforts to blacken Supreme Court nominees. Reducing any individual to a sentence lifted from a footnote in a decades-old memo is unfair, and it is even more so when such filaments of evidence are used to predict a future voting pattern. Pressing our judges through the machinery that makes political sausage is unfair; it devalues the work they do, and it could over time change our instinctive understanding of that work, making us believe that it is mere politics.
Future justices need to be questioned, their records need to be scrutinized and their judicial philosophies should be zealously plumbed. Genuine ethical and moral failings should be probed. But a systematic process of diminishing and demonizing judicial candidates for political ends ultimately diminishes the law itself.
Americans have a deep moral and historical sense of what judging means and what judges do, and we must evaluate Alito as we evaluated Roberts and Miers -- based on whether he conforms to that model. The best tools at our disposal will be our brains and our intuitions; the worst tools will be the television ads and the shrieking pundits. That kind of chatter may or may not help us elect the best public officials, but it can tell us nothing whatsoever about the merits of a judge.
DAHLIA LITHWICK covers the Supreme Court for Slate.